Earlier this month, the Center for Constitutional Rights, along with other nationally prominent human rights groups, including the ACLU, Human Rights First, and Human Rights Watch, filed an amicus brief with the Ninth Circuit Court of Appeals asking the full court to review a troubling under-the-radar ruling that caught our attention. In this case, Munoz v. Thomas, a three-judge appellate panel authorized the extradition of a Mexican national to Mexico, even though the confessions supporting the extradition were later recanted by the witnesses because they were obtained through torture, which is frequently used by Mexican police. The extradition judge and the three-judge appellate panel was untroubled by the recantations and gave the confessions enough weight to conclude extradition was appropriate. In effect, the court treated a confession, and evidence that the confession was obtained by torture as a routine, he-said/she-said set of conflicting evidence, and concluded that evidence that the confessions were obtained by torture did not undermine the sufficiency of the probable cause requirement for an extradition.
But, of course, evidence procured by torture is no ordinary evidence. As the court explained in our landmark case, Filartiga v. Pena-Irala, which recognized the validity of the Alien Tort Statute as a tool to sue foreign torturers in U.S. Courts, "The torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind." In the amicus brief, CCR and our co-signatories argued that the court's decision contradicts a core provision of the international Convention Against Torture, which was ratified by the United States and is fully binding as federal law in the case, as well as basic notions of due process. Specifically, Article 15 of the Convention contains an “exclusionary rule” that prohibits parties from using “any statement” that was “made as a result of torture,” as “evidence in any proceedings,” including extradition proceedings, and U.S. constitutional law has for over 80 years, affirmed that there is little “more revolting to the sense of justice” than to admit confessions obtained by torture, including the very methods used by the Mexican police in this case. The decision accepting the torture evidence in this case not only violates United States’ obligation under international law but, as the brief argues, “it represents a judicial sanction of the use of torture in U.S. extradition proceedings, inviting foreign governments to employ torture, instead of ending it.”
The case drew CCR’s attention for obvious reasons, given that we have represented dozens of clients tortured and brutalized in Guantanamo, secret CIA detention, Abu Ghraib and through the practice of extraordinary rendition, and we are well-aware of the risks that torture can become normalized if not categorically banned. In an op-ed published this week by the San Francisco Chronicle, Juan Méndez, the UN's top investigator on torture, echoed this concern, wisely observing that that “[the] backdrop to the pending court decision is the U.S. government’s own use of torture after 9/11, which did serious damage both to human beings and the country’s reputation as one that respects human rights and the rule of law.” UN Rapporteur Méndez warns that “if the United States allows [this] extradition, it will violate the prohibition on using evidence produced by torture, and this will lead to wider acceptance of violations of the Convention Against Torture around the world.” Read the op-ed here.
Recently, the full court of the Ninth Circuit Court of Appeals, has ordered the U.S. government to respond to Munoz’s petition for full-court review, an encouraging sign that the court, and not just human rights groups, might also recognize the significance of this worrying precedent.