ROBERT D. McCALLUM JR.
Assistant Attorney General
VINCENT M. GARVEY
CAROLE A. JEANDHEUR
Attorneys, Civil Division
U.S. Department of Justice
901 E St., NW, Rm. 958
Washington, D.C. 20530
Tel: (202) 514-5437
Fax: (202) 616-8202

JOHN S. GORDON
United States Attorney
JOHN C. HUESTON
Assistant United States Attorney
Chief, Santa Ana Branch
LINDA M. AOUATE (Cal. Bar No. 132278)
Assistant United States Attorney
411 West Fourth Street, Suite 8000
Santa Ana, California 92701
Telephone: (714) 338-3594
Facsimile: (714) 338-3561

Attorneys for Respondent
W.H. SEIFERT, Warden

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

RAMIRO CORNEJO-BARRETO, )
)
Petitioner, ) Case No. SA-CV-01-662-AHS
)
v. )
)
W. H. SEIFERT, Warden, ) RESPONDENT'S OPPOSITION TO
) PETITION FOR HABEAS CORPUS
Respondent. )
)

INTRODUCTION

A century of well-settled extradition law vests sole discretion in the Secretary of State to make a final surrender decision after a fugitive has been certified extraditable, and Congress has confirmed, through its passage of the Foreign Affairs Reform and Restructuring Act ("FARR Act"), that this discretion should remain unreviewable when there are allegations that extradition could subject an individual to torture in the receiving country. Nonetheless, a recent opinion by a divided panel of the United States Court of Appeals for the Ninth Circuit, Cornejo-Barreto v. Seifert, 218 F.3d 1004 (2000) ("Cornejo-Barreto I"), suggests that judicial review of the Secretary of State's extradition decision is available under the Administrative Procedure Act where there are allegations of torture. Although the United States respectfully submits that the panel's conclusions about the availability of judicial review are both dicta and erroneous, the government recognizes that this Court may determine that it is bound to follow the Ninth Circuit's reasoning. Accordingly, the attached Declaration of Samuel M. Witten ("Witten Decl.") (Attachment 1) and the legal discussion infra are submitted in order to brief this Court and preserve the government's rights to appeal an adverse decision from the Court relating to review of the Secretary of State's decision. Furthermore, the government requests that, should this Court determine that it must follow the Ninth Circuit's analysis and grant Ramiro Cornejo-Barreto's ("Cornejo-Barreto") petition, the Court also enter a stay of that decision so that Cornejo-Barreto would remain in custody pending an appeal to the Ninth Circuit or the Supreme Court. Such a stay is warranted not only by the government's likelihood of ultimate success, but by the danger that would be posed to the public by Cornejo-Barreto's release./

By not submitting an administrative record for this Court to review, the government does not in any way concede or suggest that petitioner is likely to be tortured if he is returned to Mexico, or that the Secretary's decision to extradite Mr. Cornejo-Barreto was not fully in accordance with law. However, for many of the reasons outlined below, including the fact that the Secretary's extradition decision may involve the most sensitive matters of foreign policy, judicial review of his decision and the considerations underlying it prior to a final determination after any appeal on the issue of jurisdiction would be inappropriate.

FACTUAL BACKGROUND
A. Extradition Proceedings
Much of the relevant factual background has been set out in this Court's October 7, 1999, Order denying Cornejo-Barreto's first habeas petition. Cornejo-Barreto v. Seifert, SA CV 97-843 (C.D. Cal.) (Stotler, J.). In short, in May 1989, Mexican citizen Cornejo-Barreto allegedly robbed a store in Tijuana, Mexico. In fleeing, he allegedly shot and killed one police officer and injured another before being apprehended by police. Cornejo-Barreto confessed to the charged offenses, although he subsequently claimed that his confessions were coerced by torture. Cornejo-Barreto escaped from pretrial custody and, in August 1991, a judge in Tijuana issued a warrant for his arrest. On October 10, 1996, Cornejo-Barreto was arrested in California at the request of the Government of Mexico, and the United States Attorney's office filed a Request for Extradition and Government's Filing of Formal Extradition Papers on December 12, 1996.
Magistrate Judge Elgin Edwards conducted an extradition hearing in July and August 1997. Cornejo-Barreto argued that he would be tortured if returned to Mexico and that Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention") therefore barred his extradition. No evidence was offered to rebut Cornejo-Barreto's torture claim,/ as the government argued that the claim was not relevant to the Magistrate Judge's certification decision.

On September 23, 1997, Magistrate Judge Edwards certified Cornejo-Barreto's extraditability, finding that there was evidence sufficient to establish probable cause to believe that Cornejo-Barreto committed the offenses he was charged with and that all requirements to support the request for extradition were met. Magistrate's Order at 17. In addressing the evidence relating to Cornejo-Barreto's torture claim, Judge Edwards found that Cornejo-Barreto's "evidence that he was or will be tortured is inadmissible to show . . . that certification should not be made because of the potential repetition of torture if he is extradited." Id. at 12. However, Magistrate Judge Edwards concluded that, although Cornejo-Barreto "made inconsistent statements [on cross-examination] and admitted to conduct utterly inconsistent with his claim that he is deeply fearful of being tortured if he is returned to Mexico," id. at 10, on the basis of the evidence submitted to the Court "it is more probable than not that [Cornejo-Barreto] will be tortured again upon his return to Mexico." Id. at 13. Magistrate Judge Edwards also noted that, "[i]t may be that the Mexican government could have rebutted the Fugitive's evidence and testimony completely and convincingly had it chosen to do so. . . . [but] it would frustrate the purposes of extradition proceedings to require any foreign government to do that." Id.
B. The First Habeas Petition
On October 2, 1997, Cornejo-Barreto filed a petition for a writ of habeas corpus under 28 U.S.C. � 2241, Cornejo-Barreto v. Seifert, SA CV 97-843 AHS (C.D. Cal.) (Oct. 7, 1998) ("first habeas petition"), claiming, inter alia, that the Magistrate's Order certifying extraditability violated Article 3 of the Torture Convention. Id. at 4. This Court denied the petition. Id. at 2. It held that Article 3 "does not give Cornejo-Barreto rights which are enforceable in a judicial proceeding." Id. at 8. It also relied on the rule of judicial non-inquiry in noting that the Secretary of State was better situated than the courts to consider and balance any concerns about the treatment that awaits a fugitive in a country requesting his extradition. Id. at 15.

Petitioner appealed to the U.S. Court of Appeals for the Ninth Circuit, where he pressed only his claim under the Torture Convention. In renewing his claim, he argued that the Torture Convention was self-executing and thus was enforceable by individuals without any implementing legislation. Cornejo-Barreto I, 218 F.3d at 1009. The government noted recently enacted legislation implementing the Torture Convention (the Foreign Affairs Reform and Restructuring Act, or FARR Act) in its opposition brief, and pointed out that the Act and its implementing regulations expressly prohibited judicial review of Torture Convention claims in the extradition context. Id. at 1012. The government also argued that the rule of judicial non-inquiry barred petitioner's claim. At oral argument, petitioner expressly argued that the case should be decided under the Torture Convention language alone, and not under the FARR Act or its regulations. The Administrative Procedure Act was not discussed by either party during briefing or oral argument, nor was it raised during argument by any member of the Ninth Circuit panel.
In its decision, the Ninth Circuit panel affirmed this Court's judgment but directed that the denial of Cornejo-Barreto's petition "be without prejudice to the filing of a new petition should the Secretary of State decide to surrender" him. Cornejo-Barreto I, 218 F.3d at 1017. The majority declined to consider the issue presented by the petitioner, i.e., whether the Torture Convention was "self-executing" and provided judicially enforceable individual rights, holding that such a claim was not ripe before the Secretary of State made his extradition decision. Id. at 1008. Instead, the panel majority defined its "task" as "to determine what procedures are available to petitioner to assert his rights under the Torture Convention and the timing thereof." Id. at 1007.
The panel majority concluded that, after the Secretary of State made his extradition decision, review of that decision would be available under the Administrative Procedure Act ("APA"), 5 U.S.C. � 704. Cornejo-Barreto I at 1012-15. In reaching that conclusion, the court determined that the Secretary's extradition decision was not "committed to agency discretion by law," and that no statute precluded judicial review.
Judge Kozinski concurred in the judgment but declined to join in the Court's analysis of the applicability of the APA, noting that "the question of whether petitioner would be entitled to judicial review of an extradition decision by the Secretary of State is not before us." 218 F.3d at 1017. Judge Kozinski would hold "only that the District court does not have jurisdiction to review petitioner's claim under the Torture Convention, because the FARR Act does not authorize judicial enforcement of the Convention, and the Convention is not self-executing." Id. (citations omitted).

By letter of May 22, 2001 to his attorney, Cornejo-Barreto was advised that he could submit materials to the Secretary of State for his consideration in determining whether he would authorize extradition and, thereafter, Cornejo-Barreto submitted a number of documents. See (Second) Petition for Writ of Habeas Corpus, filed July 12, 2001, Exh. P. On June 30, 2000, the Secretary of State signed a warrant of extradition for Cornejo-Barreto. See id., Exh. C. In deference to the Ninth Circuit's earlier decision, the Department departed from standard practice and informed Cornejo-Barreto of the surrender decision and delayed extradition to allow him an opportunity to file the instant petition. The Department also advised Mexican Government officials that extradition was being delayed.
C. The Secretary of State's Consideration of Requests for
Extradition Where Torture Claims are Raised
Although, for the reasons discussed below, the government declines to submit an administrative record underlying the Secretary of State's decision to surrender Cornejo-Barreto and subject the Secretary's decision to APA review, the attached Witten Declaration outlines the general procedures and considerations involved when the Secretary makes an extradition determination when the issue of torture has been raised by the fugitive or other interested parties. In making that determination, the Secretary considers whether it is more likely than not that the particular fugitive will be tortured in the country requesting extradition. Witten Decl. � 8; 22 C.F.R. � 95.2(b).
Appropriate policy and legal offices within the State Department review and analyze information relevant to the particular case in preparing an extradition recommendation to the Secretary. Witten Decl. � 6. These offices include the Bureau of Democracy, Human Rights, and Labor, which drafts the U.S. Government's annual Human Rights Reports, as well as the relevant regional bureau, country desk, or U.S. Embassy. Id. The Department considers information concerning judicial and penal conditions and practices of the requesting country, including the Department's Human Rights Reports, and the possible relevance of that information to the individual whose surrender is at issue. Id. � 7. The Department will examine materials submitted by the fugitive, persons acting on his behalf, or other interested parties and other relevant materials that may come to its attention. Id.

Based on the analysis of the relevant information, the Secretary may decide to surrender the fugitive, to deny surrender, or to condition the extradition on the requesting State's provision of assurances related to torture or other aspects of the requesting State's criminal justice system that protect against mistreatment, such as that the fugitive will have regular access to counsel and the protections afforded under that State's laws. The decision to seek assurances is made on a case-by-case basis. Witten Decl. � 8.
Evaluating the need for assurances, and assurances obtained, can involve sensitive and complex judgments about the identity, position, or other information relating to the official relaying the assurances, as well as political or legal developments in the requesting State that would provide context for the assurances provided, and the U.S.'s diplomatic relations with the requesting State. The Department officials analyzing the information may make a judgment regarding the requesting State's incentives and capacities to fulfill its assurances. See Witten Decl. � 9. The State Department may also ask governmental or non-governmental human rights groups to monitor the condition of a fugitive once he is extradited. Id. � 10.
The Department's ability to seek and obtain assurances from a requesting State depends in part on the Department's ability to treat these dealings with discretion. Id. � 11. If the Department was required to make such communications public, it could impede frank communication from a requesting State. Id. � 12. In addition, judicial decisions overturning a determination made by the Secretary after extensive discussions and negotiations could seriously undermine our foreign relations as well as add delays to what is already a lengthy process. Id. � 13.

ARGUMENT
A. The Ninth Circuit Panel's Opinion is Dicta and Therefore Not
Binding on This Court
In order to establish a right to judicial review of the Secretary's extradition decision, Cornejo-Barreto's second petition for habeas corpus relies entirely on the authority of the Ninth Circuit panel's decision in Cornejo-Barreto I. However, that portion of that decision is not binding on this Court.

First, as the panel itself stated, the APA can only provide review of final agency actions and, therefore, plaintiff's petition had to be dismissed because it was not ripe. Cornejo-Barreto I, 218 F.3d at 1016. At the time the panel issued its decision, the Secretary of State had not even had an opportunity to consider Cornejo-Barreto's torture claims, nor had he ordered petitioner's surrender to Mexico. Because, as the panel noted, 28 U.S.C. � 2241 "confers jurisdiction only when no other relief is available to petitioner," 218 F.3d at 1006, and because Article III of the Constitution limits a federal court's power to decide "cases and controversies" actually before it, the Court lacked jurisdiction to reach any issue other than the one actually pending before it./ Consideration of the question what would happen after the Secretary of State made a decision was simply beyond the Ninth Circuit's power before such a decision was made.
The fact that the Secretary eventually did certify extradition does not transform the Ninth Circuit opinion in Cornejo-Barreto I into a binding decision. "Ripeness can be characterized as standing on a timeline," Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000). Because the issue was not ripe at the point in time that the court reached its decision, its consideration of the question amounts to a nonbinding advisory opinion - i.e., "an opinion advising what the law would be upon a hypothetical state of facts." North Carolina v. Rice, 404 U.S. 244, 246 , 92 S. Ct. 402, 404.

Not only were the issues discussed by the panel majority not ripe, they also were not presented by the parties to this Court or the Ninth Circuit panel - indeed, neither the applicability of the APA nor the availability of any judicial review of the Secretary's decision was ever briefed by the parties nor argued before either Court./ The Ninth Circuit has held that it will not consider issues that have been neither briefed nor argued - particularly when they concern events that are "hypothetical." See United States v. Hamide, 914 F.2d 1147, 1151 (9th Cir. 1990); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (a "federal appellate court does not consider issues not passed on below")./ Indeed, it is a fundamental tenet of our adversarial system that legal arguments are aired and tested prior to judicial resolution. Cf. United States v. Fruehauf, 365 U.S. 146, 157 (1961).
Finally, the panel's discussion of the APA and future judicial review meets the classic definition of dicta, as it is "not necessary to the decision" in the case./ See Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1472 (9th Cir. 1995) (citing Black's Law Dictionary definition of "dictum"). The panel majority's note that, "[w]ere APA review not available, we would be required to reach the merits of the instant petition," 218 F.3d at 1007, n.2, does not transform the opinion's dicta into holding. Even if the Court believed that APA review of the Secretary's eventual decision would not be available, it understood that, "at this point, it is still possible that the Secretary will refuse to surrender the petitioner." Id. at 1006. Accordingly, at the time that the panel issued its decision, there remained the possibility of administrative relief. Further, a court's understanding that review is available in the future - even if that understanding plays a role in its decision about review at an earlier stage of the proceeding - cannot bind a future court to engage in that review.

An en banc panel of the Ninth Circuit recently addressed the parameters of dicta in a lengthy discussion in United States v. Johnson, 256 F.3d 895 (9th Cir. 2001). Seven members of the panel joined an opinion written by Judge Kozinski which rejected the classic definition of dicta - analysis "not necessary to the court's decision," id. at 914 (quoting United States v. Enas, 204 F.3d 915, 920 (9th Cir. 2000)) - in favor of an analysis that considers whether an issue was "necessarily decided" by the panel. Id. at 915. In explicating his preferred definition of dicta, Judge Kozinski invoked a test set out in United States v. Weems, 49 F.3d 528, 532 (9th Cir. 1995), a case concerning the application of collateral estoppel. In Weems, the Ninth Circuit determined that, because a district court "heard evidence and argument from both sides" on a question at issue, "and specifically concluded" that the question should be decided in a particular way, its decision should have preclusive effect, although the decision was not strictly necessary to the Court's ultimate decision in the case. Id. Judge Kozinski opined that Weems test should also apply in determining whether a court's statements are binding on lower courts. Johnson, 256 F.3d at 915-16.
Three judges in Johnson declined to join Judge Kozinski's view of dicta. Judge Tashima argued that the majority opinion's discussion of dicta was both flawed and itself dicta, and that it could not bind a future court. Johnson, 256 F.3d at 919-21. Judges Gould and Berzon also declined to join that portion of Judge Kozinski's opinion, noting that the "holding/dicta debate" had not been briefed, argued, or discussed in conference and, in addition, it fell outside the Court's Article III power to decide cases and controversies. Id. at 921-22. Judges Gould and Berzon also argued that "the debate of the judges in this case over the binding effect of their decisions made here cannot bind a future panel which will have its own duty to assess whether a judicial statement is holding or dicta." Id. at 922.

The significance of Johnson on the questions posed to this Court is substantial. Under the reasoning of all three opinions in Johnson, the Cornejo-Barreto I opinion about the availability of APA review is not binding on this Court./ Even Judge Kozinski's opinion in Johnson suggests that a court's discussion of an issue that had not ever been briefed or argued by the parties, and which clearly was not "necessary to" the decision ultimately reached, need not be binding on lower courts. See Johnson, 256 F.3d at 916 (the standard of review at issue in Johnson "was fairly presented to us and refined through the adversary process, and we have decided it after careful analysis. . . . Under these circumstances, our court has undeniably decided the issue, and our holding becomes the law of the circuit"). Because the parties in Cornejo-Barreto I did not present any arguments regarding judicial review of the Secretary's extradition decision or the applicability of the APA, the panel's discussion of those issues fails even the relatively lenient test set out in Johnson for binding lower courts and subsequent Ninth Circuit panels.
B. This Court Lacks Jurisdiction to Review the Secretary of State's Decision

1. The Background of the Rule of Non-Inquiry

Prior to the Ninth Circuit's decision in Cornejo-Barreto I, it was well-settled law that, except where Congress has provided otherwise, "[e]xtradition is a matter of foreign policy entirely within the discretion of the executive branch." Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997). See also Cornejo-Barreto I, 218 F.3d at 1010. In particular, with respect to humanitarian claims, courts have recognized that it is not for the judiciary to engage in an assessment of a foreign nation's practices and that such determinations are properly left to the Secretary of State. See e.g. Matter of Requested Extradition of Smythe, 61 F.3d 711, 714 (9th Cir. 1995) ("courts are ill-equipped as institutions and ill-advised as a matter of separation of powers and foreign relations policy to make inquiries into and pronouncements about the workings of foreign countries' justice systems"); U.S. v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997)(the "rule of non-inquiry, like extradition procedures generally, is shaped by concerns about institutional competence and by notions of separation of powers"); Ahmad v. Wigen, 910 F.2d 1063, 1066-67 (2d Cir. 1990). Accordingly, all courts that had considered the issue, including the Ninth Circuit, had agreed that the Secretary of State's decision on whether to extradite a fugitive certified extraditable is final and "not subject to judicial review." Id./ This "rule of non-inquiry" has been held to apply even after the United States signed on to the Torture Convention, see id., and after the FARR Act went into effect. See Sandhu v. Burke, 2000 WL 191707 at **8-9 (S.D.N.Y. 2000). See also Cornejo-Barreto I, 218 F.3d at 1010 (citing Lopez-Smith v. Hood for the proposition that "[b]efore the implementing regulations were adopted, we held that no judicial review of the Secretary's decision was available.").
2. The History of the Torture Convention and the FARR Act Indicate that Congress Did Not Intend to Give Courts a Broader Role in Extradition Determinations
It was in this legal context that the United States became a party to the Torture Convention and Congress passed implementing legislation calling for the promulgation of regulations. The Cornejo-Barreto I panel appears to have found in these actions an intent on the part of Congress to overrule the precedent establishing the rule of judicial non-inquiry. However, as explained more fully below, the history of the Torture Convention and its implementing statute far more readily support the opposite conclusion: that Congress went to substantial effort to definitively preclude judicial review of extradition decisions.
The Torture Convention was adopted by the United Nations General Assembly on December 10, 1984, and it entered into force June 26, 1987. See S. Exec. Rep. 101-30, 101st Cong., 2d Sess. at 2 (1990). Article 3 of the Convention provides:
1. No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
S. Treaty Doc. 100-20, 100th Cong. 2d Sess. (1988).
The United States signed the Convention on April 18, 1988, and the Senate gave its advice and consent to ratification on October 27, 1990. The treaty entered into force for the United States in November 1994. See U.S. Department of State, Treaties in Force, 472 (2000); 22 C.F.R. � 95.1(a). The Senate conditioned its advice and consent to ratification upon a Resolution of Ratification declaring "that the provisions of Articles 1 through 16 of the Convention are not self-executing." 136 Cong. Rec. S17486-01 at S17492 (Oct. 27, 1990); S. Exec. Rep. 101-30 at 31. Likewise, the Senate Report regarding the Torture Convention, to which the Resolution of Ratification was appended, included the Administration's analysis that the term "competent authorities" in Article 3 "appropriately refers in the United States to the competent administrative authorities who make the determination whether to extradite, expel, or return. . . . Because the convention is not self-executing, the determinations of these authorities will not be subject to judicial review in domestic courts." S. Exec. Rep. 101-30 at 17-18 (emphasis added). There is nothing to suggest that the Senate did not concur in that analysis.
In 1998, Congress enacted the Foreign Affairs Reform and Restructuring Act, Pub. L. 105-277, � 2242, 112 Stat. 2681, codified at 8 U.S.C. 1231 note. The first provision of the FARR Act simply paraphrased Article 3 of the Torture Convention, noting it to be "the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture." Id. � 2242(a). The FARR Act directed the Department of State to prescribe regulations to implement the obligations of the United States under Article 3 of the Torture Convention. Id. � 2242(b).
Significantly, � 2242(d) of the FARR Act provides:

Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal [in immigration cases].
As required by the FARR Act, the State Department adopted regulations to implement Article 3 of the Torture Convention. See 22 C.F.R. � 95.1. These regulations provide that "the Secretary is the U.S. official responsible for determining whether to surrender a fugitive to a foreign country by means of extradition," 22 C.F.R. � 95.2(b), and that, in extradition cases where allegations regarding torture have been made, "appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant." 22 C.F.R. � 95.3(a). Thereafter, "[b]ased on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions." Id. at � 95.3(b). These regulations further provide that "[d]ecisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review." 22 C.F.R. � 95.4.
3. Review of the Secretary's Decision is Not Available Under the Administrative Procedure Act

The Cornejo-Barreto I panel concluded that, as "final agency action for which there is no other adequate remedy in a court," see 5 U.S.C. � 704, the Secretary of State's extradition decision was reviewable under the Administrative Procedure Act ("APA") once the regulations implementing the FARR Act had been promulgated./ 218 F.3d at 1010. The court noted that review is not available, however, "to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion." 5 U.S.C. � 701(a). Here, both proscriptions apply to make judicial review of the Secretary of State's extradition decision improper.
a. The FARR Act Precludes Judicial Review of the Secretary's Decision

The Cornejo-Barreto I panel erred in analyzing whether the FARR Act precluded judicial review, considering only a single phrase in one provision of the Act, � 2242(d), and determining that, on its face, it served only to preclude review of the regulations promulgated by the Secretary./ The panel erred in relying on that one lone phrase, failing to consider the remainder of the text as well as the "structure, and purpose of the Act," see Dalton v. Specter, 511 U.S. 462, 479 (1994) (Souter J., concurring), for evidence of a Congressional intent to preclude judicial review. Plenty of such evidence exists here, most unreviewed by the Cornejo-Barreto I panel. In fact, both the ratification of the Torture Convention and its implementing legislation demonstrate that Congress intended to preclude judicial review of the Secretary of State's extradition decisions.

With respect to the Torture Convention itself, the Senate expressly conditioned its advice and consent to this treaty upon a declaration providing "that the provisions of Articles 1 through 16 of the Convention are not self-executing." 136 Cong. Rec. S17486-01 at S17492 (Oct. 27, 1990)(emphasis added). At a minimum, a non-self-executing treaty does not confer any judicially enforceable rights upon a private party. Whitney v. Robertson, 124 U.S. 190 (1888) (if a treaty's "stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect."); United States v. Postal, 589 F.2d 862, 876 (5th Cir. 1979); Restatement (Third) of Foreign Relations Law of the United States, � 111(4)(a), at 43 (1987). Accordingly, the Senate's declaration that Article 3 of the Torture Convention was not "self-executing" itself demonstrates that, at the time of ratification, the Senate did not intend to subject extradition proceedings to judicial review for compliance with the Torture Convention.
The FARR Act, passed several years after the United States became a party to the Torture Convention, evidences exactly the same intent. The Act specifically provides that: "[N]otwithstanding any other provision of law . . . nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [Torture] Convention or this section . . . except as part of the review of a final order of removal [in immigration cases]." 8 U.S.C. 1231 note, � 2242(d). This unambiguous language demonstrates that, by passing this statute, Congress did not intend to provide judicial review of torture claims in extradition cases. See also H.R. Conf. Rep. No. 432, 105th Cong., 2nd Sess. at 150 ("The provision agreed to by the conferees does not permit for judicial review of the regulations or of most claims under the Convention"/). The panel majority's statement that this language simply "prohibits courts from reading an implied cause of action into the statute," 218 F.3d at 1015, has no support. This provision addresses an agency action, i.e., the Secretary of State's surrender decision, that was previously unreviewable,/ and announces that this statute will not be interpreted as providing "jurisdiction" to perform such review. Moreover, the statute clearly provides that the FARR Act should not be interpreted to provide jurisdiction to review extradition decisions "[n]otwithstanding any other provision of law," including, presumably, the APA.

In addition, the Cornejo-Barreto I panel's interpretation of � 2242(d) would make the entire last phrase - "except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act" - superfluous. Section 242 of the INA already provides courts with subject matter jurisdiction and a cause of action to review a final order of removal, see 8 U.S.C. � 1252(d), so the "except" clause would be unnecessary if, as the Cornejo-Barreto I panel presumed, the provision merely clarified that no subject matter jurisdiction is conferred by the FARR Act. The "except" clause can only be given meaning if the first part of the provision is understood to reflect Congress's view that there will be no judicial review under the FARR Act, "except" for review of final orders of removal under the INA. Thus, interpreting � 2242(d) in a way that is consonant with the axiom that courts should "avoid[] interpreting statutes in a way that 'renders some words altogether redundant,'" see, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 347 (1998) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995)), requires the conclusion that Congress intended to preclude judicial review of extradition claims under the FARR Act.
Considered against the backdrop of a longstanding history of no review, the above statutory language alone is sufficiently clear to "preclude judicial review." 5 U.S.C. � 701(a)(1).
Further, the Cornejo-Barreto I opinion makes no reference to the judicial review language in the regulations promulgated under the authority of the FARR Act, except to state that Congress only expressly insulated the regulations - and not the Secretary's extradition determinations - from challenge. 218 F.3d at 1013. But the regulations on their face state that there is no judicial review of the Secretary's extradition decisions, see 22 C.F.R. � 95.4, and the statute on its face precludes judicial review of the regulations. Moreover, the regulations deserve substantial deference as published agency interpretations of the FARR Act because Congress explicitly delegated to the Secretary the authority to "implement" the obligations of the United States under the Torture Convention. � 2242(b); See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (where there is congressional delegation of administrative authority, courts must defer to reasonable agency interpretation); compare Adams Fruit Co. Inc. v. Barrett, 494 U.S. 638, 649-50 (1990) (deference due to regulations addressing courts' jurisdiction if Congress delegated the authority to address it).

Thus, the Cornejo-Barreto I panel's reliance on the wording of a single phrase to conclude that the FARR Act permits judicial review of torture claims was improper. Not only did Congress not intend a new series of judicial challenges in extradition proceedings, it signaled its intent to preclude judicial review of torture claims in these cases. To preclude judicial review, a statute does not have to prohibit it expressly; judicial review is disallowed when there is a sufficiently strong indication that Congress intended to preclude it. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 671 (1986). At virtually every stage of congressional action from the approval of the Torture Convention, to the enactment of the FARR Act and the delegation of rulemaking authority to the Secretary, Congress took pains to reinforce the concept that compliance with the United States' obligations under the Torture Convention in extradition cases - though serious and important - are not to be enforced in court.

Finally, even if the language of the FARR Act could somehow be interpreted as leaving open the availability of judicial review under the APA, choosing such an interpretation may raise serious constitutional concerns. The rule of non-inquiry that prevailed prior to the Cornejo-Barreto I decision, though wrongly dismissed by the Cornejo-Barreto I court as merely "federal common law," has constitutional underpinnings. "The rule of non-inquiry arises from recognition that the executive branch has exclusive jurisdiction over the country's foreign affairs." Matter of Extradition of Sandhu, 886 F. Supp. 318, 321 (S.D.N.Y. 1993); see also Quinn, 783 F.2d at 789; Ahmad, 910 F.2d at 1067. Extradition proceedings "necessarily implicate the foreign policy interests of the United States." Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir. 1980). Both because the Constitution vests the power to conduct foreign relations in the political, i.e., the executive and legislative, branches of the government, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir. 1996), and because courts are "ill-equipped" to assess the adequacy of reasons behind executive decisions concerning foreign policy, serious constitutional questions are posed by the judicial review contemplated in Cornejo-Barreto I./
At a bare minimum, these questions should weigh heavily in this Court's consideration of the FARR Act's proper construction. It is axiomatic that, "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the [Supreme] Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." United States v. Winstar Corp., 518 U.S. 839, 875 (1996) (plurality opinion); see Immigration and Naturalization Service v. St. Cyr, __ U.S. __, 121 S.Ct. 2271, 2279 (2001);/ Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 466 (1989); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Constr. Trades Council, 485 U.S. 568, 575 (1988); Ashwander v. TVA, 297 U.S. 288, 348 (1936). This "cardinal principle" applies even if a merely "serious doubt of constitutionality is raised." Zadrydas v. Davis, ___ U.S. ___; 121 S. Ct. 2491, 2498 (2001) quoting Crowell v. Benson, 285 U.S. 22, 62 (1932).
These admonitions are particularly relevant here. In the absence of clear evidence of Congressional intent to give the courts a new role in reviewing Executive Branch foreign policy judgments, evidence that is entirely lacking in the history and text of the FARR Act, this court is bound to ascertain whether an alternative construction of the FARR Act "is fairly possible by which the [constitutional] question may be avoided." Public Citizen, 491 U.S. at 465-66 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).

b. The Secretary's Extradition Decision is Committed to his
Discretion by Law
Even if the FARR Act did not directly "preclude" review under 5 U.S.C. � 701(a)(1), review would be barred under � 701(a)(2) because the Secretary of State's resolution of a Torture Convention claim is "agency action [that] is committed to agency discretion." The Cornejo-Barreto I opinion ignored this rule, concluding that the rule of non-inquiry was "clearly supersed[ed]" by the FARR Act because the FARR Act imposed a "duty" on the United States that diminishes the wholly discretionary element of the Secretary's decision. 218 F.3d at 1014.
However, it is hardly self-evident that the FARR Act imposes a mandatory duty of the sort that is judicially reviewable. Notably, the substantive standard of the Torture Convention is merely paraphrased in the statute, and it is couched in terms of "policy," rather than "duty." FARR Act � 2242(a) ("It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person . . . [where] there are substantial grounds for believing the person would be in danger of . . . torture") (emphasis added). Moreover, the Senate took great pains to clarify that the Convention was not self-executing.

In addition, the "obligation" of the United States under Article 3 of the Torture Convention is to refuse extradition if the "competent authorities," taking into account "all relevant considerations," determine that there are substantial grounds for believing that there is a danger of torture. See Art. 3 Torture Convention, reprinted at 22 C.F.R. � 95.2. Under the FARR Act, the competent authority for the United States is the Secretary of State. It is for the Secretary of State to determine what considerations are relevant in determining whether a fugitive is "likely to face torture." Such a standard "fairly exudes deference" to the decisionmaker, Webster v. Doe, 486 U.S. 592, 600, and strongly suggests that the statute's implementation was "committed to agency discretion by law." Id.

In determining what categories of administrative decision are not reviewable under � 701(a)(2), the Supreme Court has considered whether certain types of decision have, by tradition, been left to agency discretion. Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (holding that allocation of lump sum appropriation was traditionally committed to agency discretion, and thus was unreviewable). Thus, in Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court held that an agency's decision not to enforce has traditionally been committed to agency discretion, and accordingly would be presumptively unreviewable under � 701(a)(2). In Webster v. Doe, the Court refused to review a decision by the Director of Central Intelligence to terminate an employee in the interests of national security, "an area of executive action 'in which courts have long been hesitant to intrude.'" Lincoln v. Vigil, 508 U.S. at 192 (citing Webster). Similarly, there is a long tradition of judicial non-inquiry into matters relating to extradition that must inform a court's decision on whether the Secretary's decision to extradite Cornejo-Barreto is reviewable under � 701(a)(2).
Like the enforcement decision held unreviewable in Heckler, the decision to extradite in the face of a torture claim requires "a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise." Heckler, 470 U.S. at 831. The decision to surrender in the face of a torture claim is based on foreign policy assessments and predictions, see Witten Decl. �� 7-10, that are beyond the expertise of the judicial branch. If, for example, the Secretary accepts the assurance of a country that, despite a history of human rights problems in that country, the person will not be tortured, a district court or court of appeals could evaluate this decision only by second-guessing the expert opinion of the State Department that such an assurance can be trusted. The Secretary may have to evaluate such issues as whether to seek assurances from the country requesting extradition; the nature and sufficiency of communications with foreign governments; the identity of the appropriate individuals from whom to seek assurances; and the role of non-governmental organizations in monitoring the treatment of extraditees. Id. The Secretary may also evaluate the requesting State's incentives and capacities to fulfill any assurances made to the United States. Id. � 9. It is difficult to think of judgments less appropriate for judicial review.

Moreover, to the extent that judicial review of the Secretary's extradition decision would require the disclosure of State Department officials' judgments and assessments on the likelihood of torture, which could include judgments on the reliability of information and representations provided and its communications with the requesting State, such disclosure could itself be harmful to our foreign policy. Disclosure could chill important sources of information and could interfere with the ability of our foreign relations personnel to interact effectively with foreign States. Witten Decl. � 11. Consistent with the diplomatic sensitivities that surround the Department's communications with requesting States concerning torture allegations, the Department does not make public its decisions to seek assurances in particular extradition cases. Id. Seeking assurances may be seen as raising questions about the requesting State's institutions or commitment to the rule of law, even where the assurances are only sought to ensure that the foreign government is aware of the concerns that have been raised. Id. If the Department were required to make public its communications with a requesting State concerning allegations of torture, that State, as well as other States, would likely be reluctant in the future to communicate frankly with the United States concerning the treatment of fugitives who have raised allegations of torture. Id. � 12.
Even if confidentiality of communications and judgments could be protected by a Court, judicial review of the Secretary's extradition decision would add delays to the already lengthy extradition process. Id. � 13. These additional delays could impair a State's ability to prosecute a fugitive by the time he is returned, and it could also harm our efforts to press other countries to act more quickly in surrendering fugitives for trial in the United States. Id. Finally, a judicial decision overturning a determination made by the Secretary after negotiations with a foreign State on assurances could also undermine our foreign relations. Id.
For all of these reasons, the Secretary's decision on whether to extradite a fugitive where torture allegations have been raised is, and should be, committed to his discretion by law.

As previously stated, if the Court disagrees with defendant's analysis and determines that it must follow the Ninth Circuit's analysis in Cornejo-Barretto I, defendant requests, in order to save this important issue for appeal, that the Court enter judgment granting Cornejo-Barretto's petition and enter a stay of grant of that decision so that Cornejo-Barretto would remain in custody pending any appeal to the Ninth Circuit and/or the Supreme Court. A court should consider four factors in determining whether to grant a stay of a decision to grant a petition for habeas corpus: "1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; 2) whether the applicant will be irreparably injured absent a stay; 3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and 4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The "possibility of flight" and the "risk that the prisoner will pose a danger to the public if released" are both factors to be considered. Id. at 777. Here, as the government has shown above, the government has a strong likelihood of success on the merits of its claim. In addition, Magistrate Judge Edwards certified that there was probable cause to believe that Cornejo-Barretto had committed numerous felonies, including murder, in Mexico. Given the seriousness of these crimes and the fact that plaintiff already fled Mexico, there is a strong possibility of flight and that plaintiff would pose a danger to the public if released. Therefore, a stay of any decision to grant Cornejo-Barretto's petition for habeas corpus is warranted.

CONCLUSION
For the above stated reasons, the Court should deny Cornejo-Barreto's petition for habeas corpus. If the petition is granted, the Court should stay its decision so that Cornejo-Barreto may remain in custody pending the government's appeal to the United States Court of Appeals for the Ninth Circuit and Supreme Court review.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General

_______________________
VINCENT M. GARVEY
CAROLE A. JEANDHEUR
Attorneys, Civil Division
Department of Justice
901 E St., NW, Room 958
Washington, D.C. 20530
Tel:( 202) 514-5437
Fax: (202) 616-8202
Attorneys for Respondent

CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2001, a copy of the foregoing Defendant's Opposition to Petition for Habeas Corpus was served by U.S. Mail, postage prepaid, upon plaintiff's counsel as follows:

Criag Wilke
Deputy Federal Public Defender
411 West Fourth Street
Suite 7110
Santa Ana, CA 92701-4598

TABLE OF CONTENTS

INTRODUCTION 1

FACTUAL BACKGROUND 2

A. Extradition Proceedings 2

B. The First Habeas Petition 3

C. The Secretary of State's Consideration of Request for Extradition Where
Torture Claims are Raised 5

ARGUMENT 6

A. The Ninth Circuit Panel's Opinion is Dicta and Therefore Not Binding on This Court 6

B. This Court Lacks Jurisdiction to Review the Secretary of State's Decision 10

1. The Background of the Rule of Non-Inquiry 10

2. The History of the Torture Convention and
the FARR Act Indicate that Congress Did Not
Intend to Give Courts a Broader Role in Extradition Determinations 11

3. Review of the Secretary's Decision is Not Available Under the Administrative Procedure Act 13

a. The FARR Act Precludes Judicial Review
of the Secretary's Decision 14

b. The Secretary's Extradition Decision is Committed to his Discretion by Law 19

CONCLUSION 22

TABLE OF AUTHORITIES
FEDERAL CASES

Adams Fruit Co. Inc. v. Barrett, 494 U.S. 638 (1990) 16

Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990) 10, 17

Ashwander v. TVA, 297 U.S. 288 (1936) 18

Baker v. Carr, 369 U.S. 186 (1962) 18

Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000) 8

Bowen v. Michigan Academy of Family Physicians,
476 U.S. 667 (1986) 17

Califano v. Sanders, 430 U.S. 99 (1977) 14

Cannon v. University of Chicago, 441 U.S. 677 (1979) 15

Castro-Cortez v. I.N.S., 239 F.3d 1037 (9th Cir. 2000) 7

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 16

Cornejo-Barreto v. Seifert, 218 F.3d 1004 (2000) passim

Crowell v. Benson, 285 U.S. 22 (1932) 18

Dalton v. Specter, 511 U.S. 462 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
and Construction
Trades Council, 485 U.S. 568 (1988) 18

Escobedo v. United States, 623 F.2d 1098 (5th Cir. 1980) 17-18

Export Group v. Reef Industries, Inc., 54 F.3d 1466 (9th Cir. 1995) 8

Matter of Extradition of Sandhu, 886 F. Supp. 318 (S.D.N.Y. 1993) 17

Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996) 17

Gallina v. Fraser, 278 F.2d 77 (2nd Cir. 1960) 11

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) 18

Heckler v. Chaney, 470 U.S. 821 (1985) 20

Hilton v. Braunskill, 481 U.S. 770 (1987) 22

Immigration and Naturalization Service v. St. Cyr,
__ U.S. __, 121 S. Ct. 2271 (2001) 18

Lincoln v. Vigil, 508 U.S. 182 (1993) 19-20

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir. 1997) 10

North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402 7

Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989) 18

Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) 8, 17

Matter of Requested Extradition of Smythe, 61 F.3d 711 (9th Cir. 1995) . . . . . . . . . . . 10

Sandhu v. Burke, 2000 WL 191707 (S.D.N.Y. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 11

Singleton v. Wulff, 428 U.S. 106 (1976) 8

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) 16

Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000) 7

U.S. v. Kin-Hong, 110 F.3d 103 (1st Cir. 1997) 10

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) 17

United States v. Enas, 204 F.3d 915 (9th Cir. 2000)) - 9

United States v. Fruehauf, 365 U.S. 146 (1961) 8

United States v. Hamide, 914 F.2d 1147 (9th Cir. 1990) 7

United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) 8-10

United States v. Pirro, 104 F.3d 297 (9th Cir. 1997) 7

United States v. Postal, 589 F.2d 862 (5th Cir. 1979) 14

United States v. Weems, 49 F.3d 528 (9th Cir. 1995) 9

United States v. Winstar Corp., 518 U.S. 839 (1996) 18

Webster v. Doe, 486 U.S. 592 19

Whitney v. Robertson, 124 U.S. 190 (1888) 14

Zadrydas v. Davis, ___ U.S. ___, 121 S. Ct. 2491 (2001) 18

FEDERAL MATERIALS

28 U.S.C. � 2241 3, 7, 13

5 U.S.C. � 701(a) 14, 16, 19

8 U.S.C. 1231 note 12-16

Administrative Procedure Act ("APA"), 5 U.S.C. � 704 4, 13

Foreign Affairs Reform and Restructuring Act,
Pub. L. 105-277, � 2242, 112 Stat. 2681 passim

22 C.F.R. � 95 passim

H.R. Conf. Rep. No. 432, 105th Cong., 2nd Sess. 15

Senate Treaty Doc., 100-20, 100th Cong. 2d Sess. (1988) 12

Senate Exec. Rpt., 101-30, 101st Cong., 2d Sess.(1990) 11-12

136 Cong. Rec. S17486-01 at S17492 (Oct. 27, 1990) 12, 14

MISCELLANEOUS

Restatement (Third) of Foreign Relations Law of the United States,
� 111(4)(a), (1987) 14

U.S. Department of State, Treaties in Force (2000) 12
(2000)