Amicus Curiae Brief — Munaf v. Geren

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OFFICE OF THE CLERK

Sépep _Nos 06-1866 and 07-394

In the Supreme Court of the United States

PETE GEREN, SECRETARY OF THE ARMY, ET AL.,

Petitioners,

V.

SANDRA K. OMAR & AHMED S. OMAR,

AS NEXT FRIENDS OF SHAWQI AHMAD OMAR

Respondents.

MOHAMMAD MUNAF, ET AL.,

Petitioners,

V.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI] CURIAE NON-GOVERNMENTAL

ORGANIZATIONS IN SUPPORT OF PETITIONERS IN

MUNAF V. GEREN, No. 06-1666, AND IN SUPPORT

OF RESPONDENTS IN GEREN v. OMAR, No. 07-394

BAHER AZMY JOHN J. GIBBONS

JENNY-BROOKE CONDON COUNSEL OF RECORD

SETON HALL UNIVERSITY LAWRENCE S. LUSTBERG

SCHOOL OF LAW AVIDAN Y. COVER

CENTER FOR SOCIAL GIBBONS P.C.

JUSTICE ONE GATEWAY CENTER

ONE NEWARK CENTER NEWARK, NJ 07102

NEWARK, NJ 07102 (973) 596-4500

(973) 642-8700

COUNSEL FOR AMICI CURIAE

LEGAL PRINTERS, Washington DC @ 202-747-2400 @ flegalprinters.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............cccccccccssescesceseeee iv

ATE CP BIIO I ona.co0sacccoccccscccecsosccccecceseseens 1

SUMMARY OF ARGUMENT..............cc.cccccecceseesceeee. 2

EEE 4

I. OMAR AND MUNAF FACE A

SUBSTANTIAL RISK OF TORTURE

UPON TRANSFER TO IRAQI

uel 4

A. Torture Is A Pervasive Part of the Iraqi

Detention and Criminal Justice System ........ 6

B. As Sunni Muslims, Omar and Munaf

Face An Even Greater Risk Of Torture

By The Predominantly Shiite

SRT SES SO a oe 12

Il. UNITED STATES LAW PROHIBITS THE

TRANSFER OF OMAR AND MUNAF

GIVEN THE SUBSTANTIAL RISK OF

TORTURE BY IRAQI OFFICIALG.................... 14

A. The Convention Against Torture And

Its Implementing Legislation

Categorically Prohibit The Transfer Of

Omar And Munaf Into A Situation

Where They Would Be Likely To Face

Torture By Third Parties, Even If The

Transfer Occurs Abroad ................ccceceeeeeeeeees 15

1. FARRA, Which Prohibits Transfers

Into a Substantial Risk of Torture

Anywhere in the World, Is Fully

Enforceable Through Habeas Corpus .....17

a. FARRA is Fully Enforceable

Through Habeas Corpua...................... 17

b. FARRA’s Broad Prohibition on

Transfer Applies

TE 19

2. On Remand, the Habeas Petitioners

are Entitled to a Hearing in Which

they Can Present Specific Evidence

Relating to their Risk of Torture............. 21

. The Due Process Clause Prohibits The

Government From Transferring U.S.

Citizens Into The Custody Of Another

Sovereign Where Torture Is Likely .............. 23

. Neither Separation of Powers Principles

Nor the Rule of Non-Inquiry Prohibit

Judicial Inquiry into the Risk of

po SE 28

1. The Government Cannot Invoke the

Rule of Non-Inquiry Where it has

Failed to Abide by any of the

Preconditions that Might Trigger its

I cechntindienietideendpuetcindnnieaiaimmmeidians 30

-ii-

2. Even if the Rule of Non-Inquiry

Could be Applied Outside the

Extradition Context, It Would Have

No Relevance to the Statutory and

Constitutional Claims Asserted by

i bnntbdttinsctcnincrsessserencssenses

a. The Passage of FARRA

Mandates Judicial Inquiry into

Ce I Oe IID vccicccccccsccsecoccccocees

b. The Rule of Non-Inquiry Does

Not Bar Challenges to the

Constitutionality of U.S.

Government Conduct....................0005

c. The Rule of Non-Inquiry Itself

Contains a Well-Recognized

Exception for Transfers Into

RNP SRST RES SESE eee

-lil-

02

TABLE OF AUTHORITIES

CASES

Abdah v. Bush,

2005 WL 589812 (D,D.C. 2005)...............+.

Abu Ali v. Ashcroft,

350 F. Supp. 2d 28 (D.D.C. 2004) .............

Adams v. United States,

ee IN I PIED seicdctncsscsccensccccesseceosoeseos

Al-Anazi v. Bush,

370 F. Supp. 2d. 188 (D.D.C. 2005) ..........

Alhami v. Bush,

No. 05-359, (D.D.C. Oct. 2, 2007)..............

Al-Joudi v. Bush,

406 F. Supp. 2d. 13 (D.D.C. 2005) ............

Al-Marri v. Bush,

2005 WL 774843 (D.D.C. 2005)............00068

Al-Shihry v. Bush,

2005 WL 1384680 (D.D.C. 20085)...............

Belbacha v. Bush,

No. 07-5258 (D.C. Cir. Dec. 31, 2007).......

Bowers v. DeVito,

686 F.2d 616 (7th Cir. 1982) ..............000008

-]vV-

Page(s)

Butera v. District of Columbia,

235 F.3d 637 (D.C. Cir. 2001) .............cccccccsssees 4, 24

Cadet v. Bulger,

377 F.3d 1173 (11th Cir. 2004) ...................... 18, 19

Chavez v. Martinez,

I I a eerariesinidlaeaamalelll 3, 23

Cornejo-Barreto v. Seifert,

218 F.3d 1004 (9th Cir. 2000) ........... ce cece eee 19, 35

Demore v. Kim,

I alan 19

DeShaney v. Winnebago County Dept. of

Social Services,

ee ee SID cctecnscnectecsernsenspioceiandia 23, 24, 27

El-Banna v. Bush,

2005 WL 1903561 (D.D.C. 2005)... eee 34

Farmer v. Brennan,

Be Be IIE vnciscccccscouvsesstasnenescensasestamaaieniial 27

Freeman v. Ferguson,

tho fF 2 Ct A pnemeamprnE ne 24

Gallina v. Fraser,

278 F.2d 77 (2d Cir.), cert. denied, 364

Sry SNe ED nicccsnsncosnnnuntacdciininndbdidigineismaiaiian 30, 36

Guerra v. Gonzales,

138 Fed. App’x 697 (5th Cir. 2005) ..................0. 28

-V-

Hamdi v. Rumsfeld,

TET TI AR RE TE 2, 36

Hoxha v. Levi,

465 F.3d 654 (Sd Cir. 2006)..............cccccccccccccccceees 37

In re Artt,

166 F.3d 463 (Sth Cir. 19GB) .........ccccccccccccssecccecees 33

In re Burt,

737 F.2D 1477 (Teta Cir. 194) .........cccccccccccccececesss 36

INS v. Cardoza-Fonseca,

TIT Te ETE 33

INS v. St. Cyr,

aii enatiitinll 18

Kaczmarczyk v. L.N.S.,

933 F.2d 688 (7th Cir. 1991) ..................ccceceeee 6, 22

Kallstrom v. City of Columbus,

136 F.3d 1055 (6th Cir. 1998) ...............:ceceeeeeeeees 24

Kamara v. Att’y Gen. of the U.S.,

430 F.3d BOB (Se Cir. BODG)............00000000000000000000.. 28

Kennedy v. City of Ridgefield,

4389 F.3d 1055 (Sth Cir. 2006) .....................ccccceees 24

Khouzam v. Hogan,

No. 07-0992 (M.D. Pa. Jan. 10, 2008)............ 18, 34

-vi-

Kneipp v. Tedder,

95 F.3d 1199 (3d Cir. 1996)............

Koskotas v. Roche,

931 F.2d 169 (1st Cir. 1991)............

Lockhart-Bembery v. Sauro,

498 F.3d 69 (1st Cir. 2007)..............

Lopez-Smith v. Hood,

121 F.3d 1322 (9th Cir. 1997).........

Milwaukee v. Illinois,

451 U.S. 304 (1981) ...........ccscceeeeeees

Mironescu v. Costner,

480 F.3d 664 (4th Cir. 2007)...........

Murray v. Schooner Charming Betsy,

ITED coinisctpinnnnisinentatinentin

Neely v. Henkel,

BE Bs BR CRIED ccccccesccscceccscesssees

Ogbudimpka v. Ashcroft,

342 F.3d 207 (3d Cir 2003)..............

Omar v. Harvey,

No. 01-2374 (D.D.C. Apr. 21, 2006)

Ordinola v. Hackman,

478 F.3d 588 (4th Cir. 2007)...........

-vii-

Parretti v. United States,

122 F.3d 758 (Sth Cir. 19977) ...................cccceseeeeees 37

Pena v. DePrisco,

— 5 & | Ls | enna 24

Pinder v. Johnson,

54 F.3d 1169 (4th Cir. 1995) ....................cceeceeeeees 24

Prasoprat v. Benov,

421 F.3d at 1016 (9th Cir. 2005), cert

denied, 546 U.S. 1171 (2006) ..................0.0004. 31, 33

Reed v. Gardner,

986 F.2d 1122 (7th Cir. 1993) ...................ecceeeeeees 24

Reid v. Covert,

I nel 23, 35

Rochin v. California,

I I cs lin ccaetitaestintelepisecinniiedta 3, 23

Rojas v. INS,

937 F.2d 186 (5th Cir. 1991) ..............cceeeeeeeeees 6, 22

Saint Fort v. Ashcroft,

$29 F.3d 191 (let Cir. 2008).........00.ccccccccocccese. 18, 19

Sale v. Haitian Ctrs. Council,

LTT na ETE 20

Singh v. Ashcroft,

351 F.3d 435 (9th Cir. 2003) ..0..........cccccceeeeeeeeeeees 19

-vill-

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) ..........cccccsssrcccceseees 17

Uhlrig v. Harder,

64 F.3d 567 (10th Cir. 1995) .................ccsseceeeeees 24

United States v. Kin-Hong,

110 F.3d 103 (1st Cir. 1997)................... 30, 31, 37

United States v. Price,

NE 3, 23, 24

United States. v. Karake,

281 F. Supp. 2d 302 (D.D.C. 2003) ................. 27

Wang v. Ashcroft,

320 F.3d 130 (2d Cir. 2003)..............-c.0ccceeeees 18, 19

Wang v. Reno,

81 F.3d 808 (9th Cir. 1996) ..........00...c eee 28, 36

Wood v. Ostrander,

879 F.2d 583 (9th Cir. 1989) ...............ccceseeeeeeeees 24

Youngstown Sheet & Tube Co. v. Sawyer,

Ec 30

STATUTES AND REGULATIONS

Foreign Affairs Reform and Restructuring Act

__, SA ST aT OE EP passim

UT ainauiceiciiiaticincsihi as cbsidaiabibiaitaiicidalieall 30, 34

Be I eetincnniccnasnnenrtnstcsmpescnsesinpentenenasaitel 31

Ee Be iiericeeeneensrenscorsccsnsenescseisnansiuninnontiil 31

le MT iteniisinnrinstomictinnuiinatinnedeninienserteteadocniaieins 25

SG I ceciorstadaecpentvonnnsistenenssnnintenhecasenuidiiontl 15

es ie ED cresercctccciccssestoseuntensenioninnmindatia 18

ee a IE seccccccseressccsosncescasenstenseniedinntnbiadiinth 22

NE icicnedacesnscencedeosocaseneetemenneisitintintinals 22

i ee 22

IEP isicotnreceninesccvsesenccineosessntensemiinin 22

Bee ae I iceccrcsnesccccereusensennensiennnsenianin 22

OTHER AUTHORITIES

Amnesty Int'l, Unjust and Unfair: The Death

Penalty in Iraq (Apr. 2007) ...........:::ssessssseeeeeseeees 9

Carlos M. Vasquez, The Four Doctrines of

Self-Executing Treaties, 89 Am. J. Int'l

I isi ictiinintcitinieiccnsisiorincasseastnesesoteseseee 17

Committee Against Torture,

General Comment 1, Communications

concerning the return of a person to a

-X-

* ieee

“

State where there may be grounds he

would be subjected to torture

(article 3 in the context of article 22),

U.N. Doc. A/53/44, annex IX at 52 (1998)............ 22

Committee Against Torture, Conclusions and

Recommendations of the Committee

Against Torture Concerning the Second

Report of the United States of America,

U.N. Doc. CAT/C/USA/CO/2, July 25, 2006......... 20

Convention Relating to the Status of

Refugees,

art. 33.1, 19 U.S.T. 6259, 189 U.N.T.S. 150......... 16

David Johnson, U.S. Struggles to Tutor

Iraqis in Rule of Law, N.Y. Times, Feb. 16,

Ellen Knickmeyer, Jnspectors Find More

Torture at Iraqi Jails, Wash. Post, Apr. 24,

EER IY ae Ee ae ee ea 8

Human Rights Committee,

General Comment 20, U.N. Doc. A/47/40

ited bie iii ta naeieneliciatiedatbabiideniininnsiaseis 16

Human Rights Watch,

HRW Index No. E1701, Vol. 17, No. 1(E),

The New Iraq? Torture and ill-treatment

of detainees in Iraqi custody (2005).............0......04. 7

Human Rights Watch,

TE itiiciniictiesctosacasnitceneieneniessonenniniite 13

-xi-

Human Rights Watch,

World Report 2007 (2007) .........ccccceeeceeeeeeeeeees

Human Rights Watch,

World Report 2008 (2008) ........c...scssseesssesssseeee

International Covenant on Civil and Political

Rights, G.A. Res. 2200A (XXI), U.N. Doc.

A/6316 (Dec. 16, 1966)...........ccccssscceseceeeesereeeees

J. Herman Burgers & Hans Danelius, The

United Nations Convention Against

Torture: A Handbook On The Convention

Against Torture And Other Cruel,

Inhuman, Or Degrading Treatment Or

sense

James A. Baker et al., The Iraq Study Group

PIES GD cncccccorevvsccnccesccvsovesesecsocoscccsscccoscecs

Jeffrey Fleishman & Asmaa Waguih,

Iraqi Security Tactics Evoke the Hussein

Era, L.A. Times, June 19, 2006....................06

Jonathan Finer & Ellen Knickmeyer, Shiite

Militias Control Prisons, Official Says,

Wash. Post., June 16, 2006 ..................ccceceeeees

Joshua Partlow, New Detainees Strain Iraq’s

Jails, Wash. Post, May 15, 2007 ...............0006+

Khan v. Canada,

Comm. No. 15/1994, U.N. Doc. A/50/44

Kirk Semple & Alissa J. Rubin, Sweeps in

Iraq Cram Two Jails, N.Y. Times, Mar. 28,

Kirk Semple, Suspects Still at Large in Iraqi

Torture Case, N.Y. Times, Nov. 8, 2006.............. 12

Laura MacInnis,

U.N. Expert Says Torture in Iraq is “out of

hand,” Reuters News, Sept. 21, 2006..................... 7

Louis Henkin, Treaties in a Constitutional

Democracy, 10 Mich. J. Int'l L. 406 (1989)............ 17

M. Cherif Bassiouni,

The Law of International Extradition:

United States Law and Practice (5th ed.

ERE Re CO Se ee 14, 30, 35

Michael J. Frank,

Trying Times: The Prosecution of

Terrorists in the Central Criminal Court of

Iraq, 18 Fla. J. Int'l L. 1 (2006)... eee 7

Michael Moss, Country in Tatters has Legal

System to Match: Courts in Iraq are

Riddled with Problems, Int’ Herald

2 EE 11

Molly Hennessy-Fiske, /rag Jails in

“Appalling” State, L.A. Times, July 21,

National Security Council,

Executive Office of the President,

Benchmark Assessment Report (2007)................ 14

Peter Beaumont, US Military police raid

detention centre to stop abuse of prisoners,

The Guardian, June 30, 2004 .................ccccceeeeeeeees 9

Richard A. Oppel, Jr., Jragi Police Cited in

Abuses May Lose Aid, N.Y. Times, Sept.

Be ns SIE IE TEED ctirinnscnctnnesnnccnnnetsiotnnseneinns 17

S.C. Res. 1770, J 2(c),

U.N. Doc. S/RES/1770 (Aug. 10, 2007) .................. 6

Sam Dagher, Trying and Shaming

Insurgents on Prime Time Iraqi TV,

Agence France Presse, Mar. 14, 2005.................... 9

Solomon Moore,

Thousands of New Prisoners Overwhelm

Iraqi System, N.Y. Times, Feb. 14, 2008....... 10, 12, 13

U.S. Dep’t of State,

Iraq: Country Reports on Human Rights

Practices — 2005 (Mar. 8, 2006)......................c000000. 6

U.S. Dep’t of State,

Iraq: Country Reports on Human Rights

Practices — 2006 (Mar. 6, 2007).................::0ceeeceeeee 6

-xiv-

U.S. Dep’t of State, Bureau of Near East

Affairs, Iraq Weekly Status Report 7 (Sept.

ee tesihntscnivensinnsinctnnimnaesinmentanstinescerseets

U.S. Dep’t of State,

Iraq: Country Reports for Human Rights —

es Si SED crsciersvinininsnnenstinnnminniananenovevees

UNAMI Human Rights Report: 1 January —

31 March 2007 25 (2007).............c.cccccccccsseeseee

UNAMI,

Human Rights Report: 1 April — 30 June

| ____, RR En ene eaten ENOTES

United Nations Convention against Torture

and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT” or “the

Convention”),1465 U.N.T.S. 85 (Dec. 10

passim

STATEMENT OF AMICI’

Amici curiae Non-Governmental Organiz-

ations, Human Rights Watch, Human Rights First,

Center for Constitutional Rights, Physicians for

Human Rights, Islamic Society of North America,

Evangelicals for Human Rights and Muslim

Advocates, are not-for-profit public interest entities

united in their common desire to eradicate torture

and other cruel, inhuman and degrading practices

across the world. Through litigation, research,

public education and advocacy, including for some

amici, faith-based advocacy, amici have worked to

ensure that the United States, as the historic leader

in the development of fundamental human rights

norms, abides by its obligations under the

Constitution, laws and treaties to protect individuals

in custody from torture, even that which might

happen at the hands of third parties.

Amici are deeply concerned by the sweeping

claim advanced by the government in these cases,

that the executive is entirely unconstrained by law

to effectuate the transfer of a person out of its

custody, where there are substantial grounds for

believing that person would be tortured. While

amici take no formai position on the jurisdictional

. No counsel for any party authored this brief in whole or

in part, and no party or its counsel made a monetary

contribution intended to fund the preparation or submission of

this brief. Letters of consent from the parties have been filed

with the Clerk’s office along with this brief.

. A full statement of each amicus’ interest can be found

in the Appendix.

Rs

question presented in this appeal, they write to

inform the Court of the strong factual basis for

believing Mr. Shawqi Ahmad Omar and Mr.

Mohammad Munaf (“Habeas Petitioners”),

particularly because they are Sunni Muslims, will

suffer torture and abuse at the hands of Iraqi prison

officials. Amici also write to clarify that the United

Nations Convention Against Torture, as

implemented through domestic legislation, and the

Fifth Amendment to the United States Constitution

preclude precisely the type of extrajudicial transfer

proposed by the executive here. Amuci thus urge this

Court to recognize that the judicial branch should

act consistently with its historic role to protect

individuals from lawless executive action. See

Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).

SUMMARY OF ARGUMENT

The United States Department of State, as

well as numerous non-governmental institutions and

regular media reports, have documented a consistent

pattern of flagrant, gross and widespread human

rights abuses in Iraq, including pervasive torture in

Iraqi detention facilities. Because torture is so

prevalent throughout all aspects of the Iraqi

detention and criminal justice systems, and because

Sunni Muslims are regularly targeted for abuse by

Shiite prison officials, the Habeas Petitioners would

face a serious risk of torture upon transfer into the

hands of the Iraqi government.

Contrary to its central contention, the

government does not possess unlimited authority to

-2.

transfer Omar and Munaf into Iraqi custody. In

addition to the arguments advanced by the Habeas

Petitioners regarding the requirement that the

government demonstrate affirmative statutory or

constitutional power to transfer citizens into foreign

custody, amici write to highlight two independent

limits on the government’s transfer authority.

First, the United Nations Convention Against

Torture (“CAT”), as implemented domestically by the

Foreign Affairs Reform and Restructuring Act

(“FARRA” or “the Act”), categorically prohibits the

government from transferring Omar and Munaf into

the custody of a state when there are substantial

grounds to believe they would be tortured. This

absolute prohibition, fully enforceable through the

habeas statute, applies even where the proposed

transfer occurs outside U.S. territory.

Second, the Due Process Clause of the Fifth

Amendment places a_ substantive limit on

government actions against citizens that would

shock the conscience. See Rochin v. California, 342

U.S. 165 (1953). Torture is conscience-shocking

conduct, see Chavez v. Martinez, 538 U.S. 760, 773

(2003) (plurality op.), as are government actions that

would make torture at the hands of third parties

more likely, United States v. Price, 383 U.S. 787, 790

(1966). The allegations presented by each of the

Habeas Petitioners demonstrate that, but for the

unlawful actions of the government (including the

proposed extrajudicial transfer), Omar and Munaf

would not be facing a substantial risk of torture;

they thus state a substantive due process claim

-3-

requiring adjudication on remand. Butera v. District

of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001).

Finally, contrary to the government’s

suggestion, the rule of non-inquiry — a doctrine that

applies only when the government follows the

statutorily-mandated extradition procedures that

trigger its application ~— has absolutely no relevance

to the adjudication of these claims. As a common

law principle, the rule of non-inquiry is abrogated by

both FARRA and the Constitution. In addition, the

rule of non-inquiry itself contains an important

exception authorizing judicial inquiry into transfers

into torture.

ARGUMENT

I. OMAR AND MUNAF FACE A SUBSTANTIAL

RISK OF TORTURE UPON TRANSFER TO

IRAQI AUTHORITIES.

The district court in Mr. Omar’s case enjoined

his transfer in part because Omar faced a strong

possibility of torture at the hands of Iraqi

government officials. In issuing a temporary

restraining order, the district judge emphasized

that, as a Sunni Muslim, Omar would be

particularly vulnerable to torture because Iraqi

. Joint Appendix (“J.A.”) 158. That conclusion was in

turn informed by specific evidence presented by Omar that he

“would be at grave and serious risk of being tortured if he were

turned over to the Iraqi criminal authorities.” J.A. 151-52

(Decl. Curt Goering, Deputy Executive. Dir., Amnesty Int'l,

USA).

wits

authorities “condoned the torture of Sunni prisoners

and used their police powers to settle sectarian

scores.”

The district court’s conclusions are well-

founded. The U.S. State Department, the United

Nations, several humanitarian organizations and

the media, have all repeatedly concluded that

torture and cruel, inhuman and degrading treatment

is an endemic and pervasive feature of the Iraqi

criminal justice and detention systems, from

investigation to sentencing. Iraqi officials have

propagated the practices, inherited from the prior

regime, of coercing confessions and gratuitously

abusing prisoners. Moreover, the Shiite command of

detention facilities has resulted in widespread

targeting of Sunni prisoners for torture or abuse —

particularly those asserted to have engaged in

security-related crimes.

Notably, the government has never even

attempted to rebut the evidence — much of it from

the U.S. government itself — of the prevalence of

torture throughout the Iraqi criminal justice system.

It is thus uncontested on this record that Habeas

Petitioners would face a grave risk of torture upon

transfer into Iraqi custody.

. J.A. 158.

A. Torture Is A Pervasive Part of the Iraqi

Detention and Criminal Justice System.

The most recent State Department Human

Rights Report on Iraq observes that “significant

human rights problems” persist in Iraqi jails,

including “torture and other cruel, inhuman, or

degrading punishment” and recounts “l[a]busive

interrogation practices” including “rape, torture and

abuse, sometimes leading to death.” This report

confirms conclusions reached by the State

Department for consecutive years® — conclusions that

should be given great weight by the courts.’

The Human Rights Office of the United

Nations Assistance Mission for Iraq (“UNAMI”)® has

. U.S. Dep’t of State, Iraq: Country Reports on Human

Rights Practices — 2006 (Mar. 6, 2007) http://www.state.gov/

g/drV/ris/hrrpt/2006/78853.htm.

. See U.S. Dep’t of State, Iraq: Country Reports on

Human Rights Practices - 2005 (Mar. 8, 2006),

http://www.state.gov/g/drl/rls/hrrpt/2005/61689.htm; U.S. Dep’t

of State, Iraq: Country Reports for Human Rights — 2004 (Feb.

28, 2005), http://www.state.gov/g/dri/ris/hrrpt/2004/41722.htm.

. Kaczmarczyk v. I1N.S., 933 F.2d 588, 594 (7th Cir.

1991) (in evaluating country conditions, courts “give

considerable weight to [State] Department's opinion”); Rojas v.

INS, 937 F.2d 186, 190 n.1 (5th Cir. 1991) (State Departme. t

Country Reports are “the most appropriate and perhaps the

best resource” for “information on political situations in foreign

nations”).

. UNAMI is authorized to “promote the protection of

human rights and judicial and legal reform in order to

strengthen the rule of law in Iraq,” and has published detailed

reports on human rights violations in Iraq since July 2005.

S.C. Res. 1770, 4 2(c), U.N. Doc. S/RES/1770 (Aug. 10, 2007).

£-

expressed grave concerns over the “continuing

reports of the widespread and routine torture or ill-

treatment of detainees.” Similarly, the 2008

country conditions report from Human Rights Watch

concludes that torture and abuse in Iraqi detention

facilities remain “common.” The U.N. Special

Rapporteur on Torture concluded that torture in

Iragi-run detention facilities was “completely out of

hand” and that “[t]he situation is so bad that many

people say that it is worse than in the times of

Saddam Hussein.””

Indeed, the various forms of torture employed

by government officials recall the “old habits” of the

Saddam Hussein regime.” These tactics include:

’ UNAMI, Human Rights Report: 1 April — 30 June 2007,

at 4 (2007), http:/Awww.uniraq.org/FileLib/misc/HR%20Report

%2Apr%20.Jun%202007%20EN .pdf (“UNAMI Report”).

Human Rights Watch, World Report 2008, at 478

(2008); see also Human Rights Watch, World Report 2007, at

469-71 (2007) (government officials “systematically torturj{e]

and kill{) detainees in their custody”); Human Rights Watch,

HRW Index No. E1701, Vol. 17, No. 1(E), The New Iraq?

Torture and ill-treatment of detainees in Iraqi custody 4, 11

(2005) (of ninety detainees interviewed, seventy-two alleged

they had been tortured or ill-treated).

- Laura MacInnis, U.N. Expert Says Torture in Iraq is

“out of hand,” Reuters News, Sept. 21, 2006.

= See Michael J. Frank, Trying Times: The Prosecution of

Terrorists in the Central Criminal Court of Iraq, 18 Fla. J. Int’!

L. 1, 107 n.443 (2006) (“[O\ld habits are hard to break, and

apparently many Iraqi police officers would rather break bones

than the habit of relying on torture to elicit confessions.”);

Jeffrey Fleishman & Asmaa Waguih, Iraqi Security Tactics

Evoke the Hussein Era, L.A. Times, June 19, 2005, at Al.

-7-

routine beatings with hosepipes, cables

and other implements . . . prolonged

suspension from the limbs in contorted

and painful positions for extended

periods, sometimes’ resulting in

dislocation of the joints; electric shocks

to sensitive parts of the body; the

breaking of limbs; . . . and severe burns

to parts of the body through the

application of heated implements.”

One detainee recently recounted, “(Iraqi guards]

hung me in the air by my legs and beat me with a

stick .... They beat me with pipes on my back and

stomach;” those guards also burned the detainee’s

hands with electric shocks and refused him food for

three days.”*

In addition to the serious sectarian conflict

described infra at Part I.B., several factors appear to

contribute to the prevalence of torture in the Iraqi

criminal justice system: the perilous security

situation throughout Iraq; an inherited culture of

as UNAMI Report, supra note 9, at 23; see U.S. Dep’t of

State, supra note 5 (“application of electric shocks, fingernail

extractions . . . sexual assault, and . . . gunshot wounds.”); see

also J.A. 151 (Decl. Curt Goering) (use of “cigarettes to burn

body parts, use of electric drills on arms and legs, and

suffocation.”).

= Joshua Partlow, New Detainees Strain Iraq's Jails,

Wash. Post, May 15, 2007, at AO1; see a/so Ellen Knickmeyer,

Inspectors Find More Torture at Iraqi Jails, Wash. Post, Apr.

24, 2006, at AO1.

us See infra note 32 (describing vengeance actions against

persons suspected of committing security-related crimes).

-8-

policing and interrogation in which conviction by

confession is celebrated for its efficiency; and a

generalized disregard for human rights.” Coercion

in the criminal justice process is so acculturated and

routine that forced confessions are televised to the

public.’ Asked to comment on this practice, an Iraqi

Minister for Human Rights praised their perceived

utility: “they have a sobering effect on people.””

Despite international pressure, the Iraqi

government has done little to address the mass

human rights violations in detention facilities,

suggesting that abuses will likely continue.” While

- See Frank, supra note 12, at 107-08; see also U.S. Dep't

of State, Bureau of Near East Affairs, Iraq Weekly Status

Report 7 (Sept. 26, 2007), http://www.state.gov/documents/

organization/93029.pdf (Iraqi official “order{ed] officers to abuse

their captives into making false confessions”).

ad Fleishman & Waguih, supra note 12, at Al

(“atmosphere of hidden brutalities” against detainees, emerged

in part because many police officers “come from a culture of

torture”); Peter Beaumont, US Military police raid detention

centre to stop abuse of prisoners, The Guardian, June 30, 2004,

at 4 (quoting Iraqi criminal intelligence officer, “[t]he American

asked me why we had beaten the prisoners. I said we beat the

prisoners because they are all bad people.”).

- Amnesty Int'l, Unjust and Unfair: The Death Penalty

in Iraq 21-25 (Apr. 2007),

http://www.amnesty.org/en/alfresco_asset/198eace3-a3 1a-11dc-

8d74-6f45f39984e5/mde 140142007en. pdf.

” Sam Dagher, Trying and Shaming Insurgents on Prime

Time Iraqi TV, Agence France Presse, Mar. 14, 2005.

According to one Iraqi law professor, “you have a military and

not a judicial body interrogating and charging people.” /d.

- U.S. Dep't of State, supra note 5 (“|Glovernment

institutions were greatly stressed and faced difficulty in

-9.

the Iraqi Ministry of Human Rights has assumed a

formal inspection role over detention facilities, there

has been “no discernible change in approach by the

Government of Iraq towards the issue of detainee

abuse and the importance of holding perpetrators

criminally liable for such crimes.”" And, because

Iraq is not a party to the United Nations Convention

Against Torture,” Omar and Munaf could not even

apply to the Committee against Torture for

protection from torture by the Iraqis.”

Moreover, the Baghdad Security Plan,

initiated in February 2007, has overwhelmed the

already strained Iraqi judicial and detention

systems.“ The immense overcrowding of Iraqi

facilities and the corresponding lack of judicial

oversight make torture and abuse all the more

successfully responding to the challenges presented by

widespread human rights abuses.”); see also David Johnson,

U.S. Struggles to Tutor Iraqis in Rule of Law, N.Y. Times, Feb.

16, 2008, at A8.

= UNAMI Report, supra note 9, at 4; see also Richard A.

Oppel, Jr., Jraqi Police Cited in Abuses May Lose Aid, N.Y.

Times, Sept. 30, 2006, at Al.

= See CAT, Status of Ratification (Oct. 2, 2007),

http://www 2ohchr.org/english/bodies/ratification/9.htm.

- Khan v. Canada, Comm. No. 15/1994, 4 12.5, U.N. Doc.

A/50/44 (1994) (fact that Pakistan was not party to Convention

heightens risk of torture).

- Solomon Moore, Thousands of New Prisoners

Overwhelm Iraqi System, N.Y. Times, Feb. 14, 2008, at A16

(overflow in all Iraqi prisons, including Justice Ministry

prisons).

-10-

likely.” Indeed, the Iraqi criminal justice system

contributes to the spread of torture throughout the

prisons. For example, trials conducted by Iraqi

judges are so summary that they fail to provide

defendants with a meaningful opportunity to contest

the charges against them or raise the issue of torture

by guards and interrogators. UNAMI explains that,

in part because of the dearth of evidence presented

and lack of participation by counsel, trial

proceedings “are typically brief in nature, with

sessions lasting on average some fifteen to thirty

minutes, during which time the entire trial is

concluded.” Even capital or serious felony cases

typically involve judicial deliberations lasting only

“several minutes for each trial.”””

Mr. Munaf received just this forra of truncated

justice. He was afforded a summary “trial” during

which he protested that his prior confession was

coerced by threat of torture. The Central Criminal

Court of Iraq ignored his protest and, following an ex

= UNAMI Report, supra note 9, at 4 (pace of arrests

following “surge” has “exceeded the authorities’ ability to

ensure judicial oversight for detainee population.”); Molly

Hennessy-Fiske, /raq Jails in “Appalling” State, L.A. Times,

July 21, 2007.

- UNAMI, Human Rights Report: 1 January — 31 March

2007, at 25 (2007), http://www.uniraq.org/FileLib/misc/HR%20

Report%20Jan%20Mar%202007%20EN pdf; see also Michael

Moss, Country in Tatters has Legal System to Match: Courts in

Iraq are Riddled with Problems, Int’ Herald Tribune, Dec. 18,

2006.

” See also UNAMI Report, supra note 9, at 33 (calling for

death penalty moratorium in light of high risk of coerced

conviction and other severe procedural defects).

Mz.

parte conversation with a U.S. military officer,

summarily sentenced him to death.”

B. As Sunni Muslims, Omar and Munaf Face An

Even Greater Risk Of Torture By The

Predominantly Shiite Authorities.

As Sunni Muslims, Omar and Munaf face a

particularly heightened risk of torture upon transfer

to the custody of Iraqi prison officials, who are

predominantly Shiite Muslims. As is well-known,

sectarian divisions between Sunni and Shiite

Muslims have come to pervade all aspects of Iraqi

social and political life, resulting in explosive cycles

of violence and revenge for the past several years.

According to the Iraq Study Group Report, “the

composition of the Iraqi government is basically

sectarian, and key players within the government

too often act in their sectarian interest.”** While

most police and prison officials are Shiite, most

prisoners are Sunni, as a result of which they

regularly suffer harsh forms of sectarian revenge at

the hands of their guards.* The Iraq Study Group

concludes that “Iraqi police . . . routinely engage in

sectarian violence, including the unnecessary

detention, torture, and targeted execution of Sunni

Arab civilians.”” These U.S. government

= See J.A. 55.

= James A. Baker et al., The rag Study Group Report 15

(2006).

= Moore, supra note 24, at Al6.

- Baker, supra note 29, at 13. Kirk Semple, Suspects

Still at Large in Iraqi Torture Case, N.Y. Times, Nov. 8, 2006,

12.

conclusions confirm the persistent allegations that

Sunni prisoners regularly suffer torture and abuse

at the hands of Iraqi police and prison officials.”

Furthermore, it appears that Shiite-run

armed militias have deeply infiltrated Iraqi prisons,

eliminating the possibility of genuine oversight by

government ministries, and presenting a dire risk of

torture and abuse for Sunni prisoners.* According

to Iraq’s Deputy Justice Minister, “[wle cannot

control the prisons. It’s as simple as that. Our jails

are infiltrated by the militias from top to bottom,

from Basra to Baghdad.”™

at A6 (Shiite-led security forces “seeking sectarian revenge

inside ministry-run prisons.”).

= Kirk Semple & Alissa J. Rubin, Sweeps in Iraq Cram

Two Jails, N.Y. Times, Mar. 28, 2007, at Al (“Iraq’s detention

system has been plagued by reports of torture, secret

detentions and mismanagement, and Sunni Arab leaders have

accused the Shiite-run government of repeatedly turning a

blind eye to widespread abuses of Sunni detainees.”). The risk

to Omar and Munaf of transfer is heightened further by their

denomination by the United States as “security internees,” G.

Br. 21, because Iraqi officials frequently reserve their harshest

of sectarian revenge on prisoners they believe to have engaged

in security-related crimes. Human Rights Watch, World

Report 2006, at 450 (2006) (particular risk of torture for

detainees accused of “security-related offenses”).

= Moore, supra note 24, at Al6 (describing alliance

between Shiite guards and militias and the use of jails by

militias to torture and execute Sunni prisoners).

- Jonathan Finer & Ellen Knickmeyer, Shiite Militias

Control Prisons, Official Says, Wash. Post., June 16, 2006, at

A01; see also U.S. Dep't of State, supra note 5 (“emerging”

Shiite militia influence “within the MOJ prison facility

-13-

Il. UNITED STATES LAW PROHIBITS THE

TRANSFER OF OMAR AND MUNAF GIVEN

THE SUBSTANTIAL RISK OF TORTURE BY

IRAQI OFFICIALS.

Amici agree with the arguments made by the

Habeas Petitioners and other amici, see Brief of

Amicus Curiae M. Cherif Bassiouni et a/., that the

executive must possess affirmative authority before

transferring a U.S. citizen into the custody of a

foreign government. Even if this Court finds that, in

these limited circumstances, the government is not

required to act pursuant to an affirmative grant of

statutory or constitutional power, it is plain that

there are important independent limitations on the

government’s authority in this case. Specifically,

both the United Nations Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“CAT” or “the Convention”), 1465

U.N.T.S. 85 (Dec. 10 1984), implemented by the

Foreign Affairs Reform and Restructuring Act of

1998 (“FARRA”), and the substantive due process

clause of the Fifth Amendment impose an

affirmative obligation against transfer by U.S.

system.”); National Security Council, Executive Office of the

President, Benchmark Assessment Report 17-23 (2007)

(continuing Shiite militia control of security forces and

government ministries). Thus, the government’s contention

that the risk of torture to Omar and Munaf is lessened because

they will likely be imprisoned in a Ministry of Justice (“MOJ”)

facility, which assertedly suffer from fewer abuses than

Ministry of Interior or Ministry of Defense facilities (Resp’ts’

Mem. Opp. Mot. for TRO, 14-15) is plainly contestable, and

would require disposition on remand.

-14-

officials into the custody of foreign government

officials who may torture petitioners. Neither the

rule of non-inquiry nor the principles underlying it

have any relevance to a court’s obligation to consider

these claims.

As such, the issuance of a standstill injunction

in these cases is an entirely appropriate exercise of a

district court’s jurisdiction pursuant to its inherent

authority and that provided by the All Writs Act, 28

U.S.C. § 1651(a), as it considers the merits of the

habeas petitioners’ claims. See Adams v. United

States, 317 U.S. 269, 273 (1942); see also Belbacha v.

Bush, No. 07-5258, Order Enjoining Transfer (D.C.

Cir. Dec. 31, 2007) (enjoining transfer of

Guantanamo detainee to home country where

petitioner had alleged fear of torture upon transfer);

Alhami v. Bush, No. 05-359, (D.D.C. Oct. 2, 2007),

slip op. at 8 (same).

A. The Convention Against Torture And Its

Implementing Legislation Categorically

Prohibit The Transfer Of Omar And Munaf

Into A Situation Where They Would Be Likely

To Face Torture By Third Parties, Even If The

Transfer Occurs Abroad.

The Convention prohibits any act of torture,

CAT, art. 2.1, as well as the transfer of a person to

another country where he may suffer torture.

Article 3.1 of CAT specifically provides:

No State Party shall expel, return

(“refouler”) or extradite a person to

-15-

another State where there are

substantial grounds for believing that

he would be in danger of being

subjected to tcrture.

CAT, art. 3.1

The Convention’s prohibition on transfers into

torture is absolute, and applies even if the U.S.

government played no role in creating the risk of

harm; it admits no exceptions, even where there

exists “a state of war or a threat of war, internal

political instability or any other public emergency.”

CAT, art. 2.2. The United States ratified CAT in

1994, and implemented the treaty domestically

through FARRA. Pub. L. No. 105-277, div. G, Title

XXII, codified as note to 8 U.S.C. § 1231. FARRA,

therefore, imposes on U.S. officials an unambiguous

obligation to comply with CAT’s broad prohibition on

such transfers into torture, an obligation fully

enforceable by Omar and Munaf through habeas

corpus.”

as Other international treaties to which the United States

is a party adopt this prohibition on the transfer of a person to a

country where he or she is likely to be tortured. See

International Covenant on Civil and Political Rights, G.A. Res.

2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966), art. 7; Human

Rights Committee, General Comment 20, art. 7, U.N. Doc.

A/47/40 (1992) (interpreting Article 7 to require that states “not

expose individuals to the danger of torture or cruel, inhuman or

degrading treatment or punishment upon return to another

country by way of their extradition, expulsion or refoulement.”);

see also Convention Relating to the Status of Refugees, art.

33.1, 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 152.

-16-

1. FARRA, Which Prohibits Transfers Into a

Substantial Risk of Torture Anywhere in

the World, Is Fully Enforceable Through

Habeas Corpus.

The United States’ obligations under CAT are

fully binding and enforceable through FARRA.

Although Articles 1 through 16 of the Convention,

when ratified by the Senate, were deemed not to be

“self-executing,”” that reservation does not diminish

the U.S. government’s obligation to comply with the

Convention’s terms.*’ At most, it suggests some

ambiguity about whether the treaty is directly

enforceable by Article III courts or in habeas

corpus.” Regardless, because FARRA implements

CAT’s Article 3 provision domestically, FARRA’s

prohibition on transfers into torture is binding law,

plainly enforceable through habeas.

a. FARRA is Fully Enforceable Through

Habeas Corpus.

FARRA establishes a statutory prohibition

against the transfer of a person “to a country in

which there are substantial grounds for believing the

= S. Exec. Rpt. 101-30, at 31 (1990).

sed Louis Henkin, 7reaties in a Constitutional Democracy, 10

Mich. J. Int'l L. 406, 425 (1989) (“The international obligation

of the United States under a treaty is immediate, whether a

treaty is self-executing or not.”).

as Compare Carlos M. Vasquez, The Four Doctrines of

Self-Executing Treaties, 89 Am. J. Int'l L. 695, 719-21 (1995)

with Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.

Cir. 1984) (Bork, J., concurring).

-17-

person would be in danger of being subjected to

torture.” FARRA, § 2242(a). The writ of habeas

corpus extends to claims that a person is in custody

in violation of the laws of the United States. 28

U.S.C. § 2241(c\3). A person in custody of the

United States may, therefore, challenge his

detention and related transfer in violation of FARRA

just as he or she would challenge the violation of any

other federal statute. See Saint Fort v. Ashcroft, 329

F.3d 191, 202 (1st Cir. 2003) (““FARRA and the

regulations are now the positive law of the United

States, and, as such, are cognizable under habeas.”);

accord Ogbudimpka v. Ashcroft, 342 F.3d 207, 220

(3d Cir 2003); Wang v. Ashcroft, 320 F.3d 130, 141

n.16 (2d Cir. 2003); Cadet v. Bulger, 377 F.3d 1173,

1182 n.7 (11th Cir. 2004); see also Khouzam v.

Hogan, No. 07-0992, slip op. at 15 (M.D. Pa. Jan. 10,

2008) (“Non-refoulement is the law of the United

States.”).

The government may argue that § 2242(d) of

FARRA, which purports to preclude judicial review

over claims arising under the Act, also strips the

district court of habeas corpus jurisdiction to hear

claims raising violations of § 2242(a) of the Act.”

Though the assertion is not ripe for this Court’s

adjudication, it is, in any event, foreclosed by this

Court’s decision in JNS v. St. Cyr, which considered

a nearly identical jurisdiction-stripping provision.

- Section 2242(d) provides, in relevant part, that “nothing

in this section shall be construed as providing any court

jurisdiction to consider or review claims raised under the

Convention or this section.”

-18-

533 U.S. 289, 298 (2001); see also Demore v. Kim,

538 U.S. 510 (2003). Applying the analysis of S¢.

Cyr to FARRA, numerous courts have held that §

2242(d) does not contain “specific and unambiguous

statutory directives to effect a repeal,” St. Cyr, 533

U.S. at 299, and that district courts, therefore, retain

habeas jurisdiction to consider CAT and FARRA

claims. Ogbudimpka, 342 F.3d at 215-22; Cadet, 377

F.3d at 1182; Saint Fort, 329 F.3d at 200-02; Wang,

320 F.3d at 140-43; Singh v. Ashcroft, 351 F.3d 435,

441-42 (9th Cir. 2003); see also Cornejo-Barreto v.

Seifert, 218 F.3d 1004, 1013 (9th Cir. 2000) (finding

no bar to habeas jurisdiction, prior to St. Cyr

decision). But see Mironescu v. Costner, 480 F.3d

664, 673-76 (4th Cir. 2007). Thus, the Habeas

Petitioners’ CAT claims are not foreclosed; remand

for adjudication by the district court is required.

b. FARRA’s Broad Prohibition on Transfer

Applies Extraterritorially

The government argues that Iraq has

exclusive jurisdiction over Omar because he is

already in Iraq and that no treaty or statute bars his

transfer to Iraqi authorities. G. Br. 38-39. Indeed,

the government suggests that, “when the United

States has custody of a person in a foreign country, it

is a misnomer to refer to the United States

‘transferring’ the person to that country’s custody.”

G. Br. at 43. However, the government’s position is

plainly contradicted by the clear language and

purpose of CAT and FARRA.

-19-

FARRA expressly covers any hand-over from

one sovereign to another, prohibiting the United

States from “expelling], extradit[ing], or otherwise

effecting] the involuntary return” of a person. §

2242(a) (emphasis added). FARRA ensures that this

obligation applies “regardless of whether the person

is physically present in the United States.” Id.

(emphasis added). This absolute - and

extraterritorial — prohibition on transfers to likely

torture is also mandated by Article 3 of the

Convention.“ The drafters intended Article 3 to

apply to “any person who, for whatever reason, is in

danger of being subjected to torture if handed over to

another country . . . [and to] cover al] measures by

which a person is physically transferred to another

state.” It also applies in military occupations.“ An

© FARRA’s clear and explicit language, (as well as CAT’s

drafting history) thus renders inapposite the Court’s decision in Sale v.

Haitian Ctrs. Council, 509 U.S. 155 (1993), to decline extraterritorial

application of the Immigration and Nationality Act, which contains no

such express terms.

S J. Herman Burgers & Hans Danelius, The United

Nations Convention Against Torture: A Handbook On The

Convention Against Torture And Other Cruel, Inhuman, Or

Degrading Treatment Or Punishment (“Handbook on CAT”)

125-26 (1988) (emphasis added); see also Committee Against

Torture, Conclusions and Recommendations of the Committee

Against Torture Concerning the Second Report of the United

States of America, J 20, U.N. Doc. CAT/C/USA/CO/2 (July 25,

2006) (“Committee Conclusions”) (Article 3 applies

extraterritorially).

= Burgers & Danelius, Handbook on CAT at 131 (CAT

meant to apply to “territories under military occupation, to

colonial territories and to any other territories over which a

State has factual control.”); see alsoCommittee Conclusions,

q 15 (territory under State party’s jurisdiction “includes all

-20-

interpretation of FARRA that would permit an

extraterritorial transfer, therefore, would not only

violate the statute’s plain terms, it would also be

inconsistent with well-settled international law

interpretations of CAT. See Murray v. Schooner

Charming Betsy, 6 U.S. 64, 118 (1804).

2. On Remand, the Habeas Petitioners are

Entitled to a Hearing in Which they Can

Present Specific Evidence Relating to their

Risk of Torture.

Although the Department of Defense (“DoD”)

has not issued regulations pursuant to § 2242(b) of

FARRA, the absence of regulations does not absolve

the DoD from its legal obligations under the treaty

and the statute not to transfer persons into torture.

This Court, of course, need not adjudicate the legal

or factual allegations relating to petitioners’ CAT

and FARRA claims. Rather, the district court on

remand is positioned to resolve any contested

questions about the legal scope of CAT and FARRA,

and conduct a factual hearing on the merits of

petitioners’ FARRA and CAT claims.

In particular, FARRA and CAT both prohibit

the transfer of a person where there are “substantial

grounds for believing the person would be in danger

of being subjected to torture,” see § 2242(a); CAT,

art. 3.1. District courts regularly interpret this

areas under the de facto effective control of the state party, by

whichever military or civil authorities such control is

exercised.”).

-21-

requirement under regulations which employ a

“more likely than not” standard. 8 C.F.R. §

208.16(c)(2); 22 C.F.R. §§ 95.1(c), 95.2(b).° In

making that assessment, the district court may

consider “all evidence relevant to the possibility of

future torture.” §§ 208.16(c)(3); § 95.2(b)(2); see also

CAT, art. 3.2 (court should “take into account all

relevant considerations including . . . a consistent

pattern of gross, flagrant or mass violations of

human rights.”).

This would include testimonial evidence to

supplement that already in the record, see J.A. at

151, as well as government and non-governmental

reports on country conditions documenting

systematic torture and abuse. See supra Part I.

Particularly persuasive to a court would be extensive

evidence from the U.S. government itself regarding

the prevalence of torture in Iraq and, therefore, the

substantial risk Omar and Munaf will face upon

transfer into Iraqi criminal custody. See

Kaczmarczyk, 933 F.2d at 594; Rojas, 937 F.2d at

190 n.1. In any event, it certainly was not an abuse

of discretion for the district court to have enjoined a

° Amici believe the “substantial grounds” standard of

Article 3 of CAT requires a lesser showing of risk than the

“more likely than not” standard employed by U.S. domestic

regulations implementing FARRA. See Committee Against

Torture, General Comment 1, Communications concerning the

return of a person to a State where there may be grounds he

would be subjected to torture (article 3 in the context of article

22), 1 6, U.N. Doc. A/53/44, annex [IX at 52 (1998). Amici

believe, however, that Omar and Munaf have stated a strong

claim for relief under either standard.

-22-

transfer, in light of the strong - and as yet

unrebutted — evidence of the likelihood of torture

before it. See Abu Ali v. Ashcroft, 350 F. Supp. 2d

28, 69 (D.D.C. 2004) (denying government’s motion

to dismiss because, among other reasons, “the

United States has not offered evidence to rebut any

of the information supplied” regarding abuse faced

by habeas petitioner “even though such evidence is

in many instances directly in its control.”)

B. The Due Process Clause Prohibits The

Government From Transferring U.S. Citizens

Into The Custody Of Another Sovereign

Where Torture Is Likely.

The Fifth Amendment - unquestionably

applicable to U.S. citizens abroad such as Omar and

Munaf, see Reid v. Covert, 354 U.S. 1 (1957) —-

prohibits abusive and shocking government conduct,

among which torture is the paradigmatic example.

See, e.g., Rochin v. California, 342 U.S. 165, 172

(1952); Chavez v. Martinez, 538 U.S. 760, 773 (2003)

(plurality). Just as the government may not itself

engage in torture, so it may not hand citizens over to

others who will torture, particularly after taking

affirmative acts that make the prospect of torture

more likely.

Specifically, the Fifth Amendment guarantee

of substantive due process prohibits the state from

affirmatively exposing citizens to serious harm,

irrespective of the source. DeShaney v. Winnebago

County Dept. of Soc. Servs., 489 U.S. 189, 199-200

(1989); United States v. Price, 383 U.S. 787, 790

-23-

(1966). Although the Constitution generally does not

protect citizens from harm by third parties, in

DeShaney the Court recognized that a duty to

protect may arise if the state played a part in the

“creation” of the danger or otherwise rendered a

citizen “more vulnerable” to harm. 489 U.S. at 201.

Following that reasoning, nearly all of the Circuit

Courts of Appeals recognize that the government

violates Fifth Amendment protections when it

affirmatively places a citizen in danger, even a

danger posed by third-parties.“* This principle is not

a novel constitutional theory, but a core principle of

due process.“

For example, in United States v. Price, 383

U.S. 787, 799 (1966), this Court held that due

process limits the government’s authority to take

= See, e.g., Lockhart-Bembery v. Sauro, 498 F.3d 69 (1st

Cir. 2007); Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2004); Kneipp

v. Tedder, 95 F.3d 1199, 1210 (3d Cir. 1996); Pinder v. Johnson,

54 F.3d 1169, 1175-77 (4th Cir. 1995) (en banc), cert. denied,

516 U.S. 994 (1995); Kallstrom v. City of Columbus, 136 F.3d

1055, 1066-67 (6th Cir. 1998); Reed v. Gardner, 986 F.2d 1122,

1127 (7th Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 54-55

(8th Cir. 1990); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th

Cir. 1989); Uhirig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995);

Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir.

2001).

* See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061

n.l (9th Cir. 2006) (“the ‘state-created danger’ doctrine

predates DeShaney’ which is “more reasonably understood as

an acknowledgment and preservation of the doctrine, rather

than its source.”); Butera, 235 F.3d at 651 (recognition of state-

created danger doctrine was “hardly breaking new ground.”)

(internal citations and quotations omitted).

-24-

custody of U.S. citizens and deliver them — without

judicial process -- into the hands of third-parties who

would harm them. In Price, the Court found that

the facts supported an indictment of Mississippi

police officials under 18 U.S.C. § 371, for conspiracy

to violate the Fourteenth Amendment, where those

officials took actions that made the victims’

interception and murder by third parties more likely.

The Court noted that “the State, without the

semblance of due process of law as required of it by

the Fourteenth Amendment, used its sovereign

power and office to release the victims from jail so

that they were not charged and tried as required by

law, but instead could be intercepted and killed.” Jd.

at 799. The government here used its “offices” to

detain Omar and Munaf and now seeks to transfer

them — without any judicial process — into the hands

of third parties likely to harm and even execute

them.

Omar and Munaf alleged specific misconduct

by U.S. officials that render them more vulnerable to

torture upon transfer than they otherwise would be

absent U.S. action. Petitioners assert that U.S.

officials took custody of them without lawful process,

J.A. 28-29, 105-106; held them virtually

incommunicado, J.A. 27, 105; subjected them to

prolonged arbitrary detention without charges for

more than two years, J.A. 28, 105; abused them, J.A.

51, 111; interrogated and threatened them and their

families with torture and sexual violence, J.A. 51-52,

55, 114; denied them access to counsel, J.A. 27, 34,

114-116; and frustrated access to U.S. consular

-25-

officials, J.A. 113. Omar and Munaf thus allege

that, but for this government misconduct, they could

have proven themselves innocent of wrongdoing

before a lawful tribunal and obtained release in a

timely manner, J.A. 52, 55, 113, avoiding the

prospects of transfer, torture, and imminent death

they now confront.

In addition, both Omar and Munaf allege that

U.S. officials interrogated them* and, in Munaf'’s

case, coerced a false confession, J.A. 51-52, 55. The

possibility that U.S. officials would share the fruits

of their allegedly illegal interrogations with Iraqi

officials as part of a collaborative effort to convict

and punish U.S. citizens could rise to the level of a

substantive due process violation, in and of itself.

See Bowers v. DeVite, 686 F.2d 616, 618 (7th Cir.

1982).*’ Of additional concern in Munaf’s case, the

U.S. officials are alleged to have helped secure his

conviction by falsely claiming that a U.S. military

official, Lt. Robert M. Pirone, was _ properly

= While detained by the United States, Mr. Omar was

questioned by American agents who told him they worked for

the Federal Bureau of Investigation. Burke Decl., Ex. A to

Renewed Request for Access & Motion for Records, para. 6,

Omar v. Harvey, No. 01-02374 (D.D.C. Apr. 21, 2006) (dkt. 29-

3). During these interrogations, Mr. Omar was beaten, and

interrogators threatened his wife and son. Jd.

ad As part of his trial in the Iraqi Criminal Court, Munaf

pleaded that his confession to U.S. officials was procured by

torture and was false, but he was convicted anyway on the

basis of his confession. J.A. 51-56. Thus, but for the abusive

interrogation techniques undertaken by U:S. officials, Munaf

may not have faced the grave risk of torture resulting from his

conviction and transfer that he now faces.

-26-

“appearing on behalf of the Romanian embassy” to

register a “1ormal complaint” against Munaf, which

Romania did not in fact authorize. J.A. 54-55; 62-63;

J.A. 67-68, 70. Munaf further alleges that US.

officials held ex parte conversations with the

presiding judicial officer immediately prior to the

imposition of his death sentence. J.A. 55-56. This

alleged misconduct alone made Munaf “more

vulnerable to danger [than] had they not

intervened.” Kneipp v. Tedder, 95 F.3d 1199, 1209

(3d Cir. 1996). See also United States. v. Karake,

281 F. Supp. 2d 302 (D.D.C. 2003) (permitting

discovery to evaluate the possibility of a joint

venture between U.S. and Rwandan officials to

deprive citizen of constitutional rights).

The government’s violation of Omar and

Munafs substantive due process rights is

exacerbated by their prolonged detention, which

created a “special relationship” between the parties.

DeShaney, 489 U.S. at 199-200; Farmer v. Brennan,

511 U.S. 825, 833 (1994) (obligation to protect

prisoners from third parties where the state

“stripped” them of “virtually every means of self-

protection and foreclosed their access to outside

S Omar’s further claim that the government intends to

“turn [him] over to the custody of Iraqi authorities in an effort

to evade the strictures of United States law,” J.A. 117, alleges

an independent violation of due process warranting further

factual inquiry. See Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 40

(D.D.C. 2004) (government does not possess “unreviewable

power to separate an American citizen from the most

fundamental of his constitutional rights merely by choosing

where he will be detained or who will detain him”).

-27-

we

aid”); Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996)

(by paroling witness into United States to testify and

placing him in custody, government “created a

special relationship” that carried obligation to

protect him from resulting liberty deprivations that

would occur upon transfer). As a result of this

“special relationship,” the U.S. government cannot

disclaim responsibility for the resulting, foreseeable

harm that would follow, even if carried out by third

parties.”

C. Neither Separation of Powers Principles Nor

the Rule of Non-Inquiry Prohibit Judicial

Inquiry into the Risk of Torture Upon

Transfer.

The government asserts that the rule of non-

inquiry and its underlying separation of powers

© Cases rejecting the availability of the state-created

danger defense to deportation, do so for reasons that would

only support the doctrine’s applicability in this transfer

context. See, e.g, Kamara v. Att'y Gen. of the U.S., 420 F.3d

202, 216-17 (3d Cir. 2005); Guerra v. Gonzales, 138 F.App’x

697, 699 (5th Cir. 2005). First, in those cases, unlike here, the

petitioners failed to allege that US. actors contributed in any

way to the danger abroad or rendered non-citizens more

vulnerable to such harm. Second, those deportation decisions

are premised on separation of powers concerns about

supplanting the fully-developed and exclusive statutory

framework for handling refugee claims of persecution or torture

under the INA. See Kamara, 420 F.3d at 217-18. In this case,

by contrast, the government’s failure to follow constitutional or

statutorily-mandated procedures in advance of transfer

suggests a stronger role for the judicial branch in placing a

substantive limit on executive conduct.

-28-

principles categorically shield any aspect of their

transfer decision from judicial review. G. Br. at 45-

47. Such a broad understanding of the rule is

unsupported by law or theory. Indeed, the

government’s assertion that the concerns underlying

the rule are “even stronger” outside the extradition

context, G. Br. at 47 — that is, when the executive

acts unconstrained by law — stands the rule on its

head.”

The rule of non-inquiry, a federal common law

principle, emerges by implication from _ the

statutorily-delegated responsibilities that are

divided between the judicial and executive branches.

The rule cannot be removed from the well-structured

extradition context in order to give the executive a

blank check to transfer U.S. citizens into patently

inhumane conditions. And, even if the rule could be

extended outside the extradition process, it would in

no way bar judicial review of Omar and Munaf’s

specific transfer-related claims in this case.

First, the common law rule of non-inquiry is

plainly trumped by statutory obligations expressly

imposed upon judges by FARRA, which mandate an

inquiry into the possibility of torture by a foreign

government. Second, nothing in the rule prohibits

inquiry into the constitutionality of a U.S. official’s

- The government unfairly casts Omar's claim as

asserting “a right to evade Iraqi jurisdiction.” G. Br. at 47. In

fact, in addition to asserting an entitlement to a challenge to

the lawfulness of U.S. detention, Resp’t. Br. 20, Omar and

Munaf invoke their right to be free from torture.

-29-

decision to transfer. Finally, the rule itself affords

an exception where a possible transfer would subject

the petitioner to treatment that would offend the

court’s sense of decency, such as subjection to

torture. See Gallina v. Fraser, 278 F.2d 77 (2d Cir.

1960), cert. denied, 364 U.S. 851 (1960).

1. The Government Cannot Invoke the Rule

of Non-Inquiry Where it has Failed to

Abide by any of the Preconditions that

Might Trigger its Application.

The rule of non-inquiry emerges as part of the

formal extradition process, and the principles

underlying it mandate that the rule be limited to

that context. See generally, M. Cherif Bassiouni,

The Law of International Extradition: United States

Law and Practice 604-42 (5th ed. 2007). Thus, the

government may not invoke the rule of non-inquiry

to shield its conduct here, particularly where it has

failed in the first instance to abide by the extradition

regime’s clear statutory framework. Cf Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-40

(1952) (Jackson, J., concurring) (judicial power to

scrutinize executive conduct greater when executive

is acting contrary to express or implied will of

Congress).

Extradition, which must be pursued according

to statute, see 18 U.S.C. § 3184, contemplates a

“two-step procedure” which divides responsibility

between a “judicial officer and the Secretary of

State.” United States v. Kin-Hong, 110 F.3d 103,

109 (1st Cir. 1997). Once a magistrate finds the

-30-

person extraditable, the Secretary of State thereafter

is statutorily authorized to reverse’ the

determination, decline to extradite on a range of

discretionary factors, affirmatively authorize the

extradition, or attach conditions to the transfer. See

18 U.S.C. § 3196; Lopez-Smith v. Hood, 121 F.3d

1322, 1326 (9th Cir. 1997); Bassiouni, /nternational

Extradition, supra at 951.

The rule of non-inquiry derives directly from

this statutory division of responsibility, by which the

judiciary defers to the Secretary of State’s discretion

regarding a range of foreign relations considerations.

See e.g., Kin-Hong, 110 F.3d at 111 n.12 (rule of non-

inquiry “defers” assessment about potential

treatment “to the second part of every extradition

proceeding -— review of extraditability and

determination of the appropriateness of surrender by

the Secretary of State”); Koskotas v. Roche, 931 F.2d

169, 174 (lst Cir. 1991) (declining to consider

fairness of Greek trial procedures upon extradition

because under 18 U.S.C. § 3186, petitioner “may

raise these concerns with the Secretary of State”);

accord Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th

Cir. 2005), cert. denied, 546 U.S. 1171 (2006). It

follows that the courts cannot be stripped of their

role to examine transfer decisions under the rule of

non-inquiry, when the executive has deliberately

eschewed the statutory framework that would

trigger the applicability of rule in the first instance.

That is the case here.

aa That discretion, however, is finally limited where there

is a credible claim of torture. See infra at Part II.C.2(a).

-31-

2. Even if the Rule of Non-Inquiry Could be

Applied Outside the Extradition Context,

It Would Have No Relevance to the

Statutory and Constitutional Claims

Asserted by Omar and Munaf.

Even if the government were correct that

principles underlying the rule of non-inquiry apply

outside the formal extradition context, the rule

would not bar judicial inquiry into the lawfulness of

the transfer asserted by Omar and Munaf in this

case. First, they challenge the executive’s failure to

abide by binding statute which specifically

commands judicial inquiry into the likelihood of

torture upon transfer. Second, Omar and Munaf

challenge the constitutionality of United States

actions as part of the decision to transfer, not the

legitimacy of Iraqi trial procedures. Finally, the rule

of non-inquiry itself contains a recognized exception

for potential transfers into torture.

a. The Passage of FARRA Mandates

Judicial Inquiry into the Risk of

Torture.

The rule of non-inquiry, a product of the

federal common law, cannot stand in the face of a

federal statute. Mi/waukee v. Illinois, 451 U.S. 304,

313 (1981) (“We have always recognized that federal

common law is subject to the paramount authority of

Congress.”) (internal quotations omitted); see

Bassiouni, /nternational Extradition, supra at 796.

As described, FARRA broadly prohibits any form of

transfer into possible torture and is thus fully

-32-

enforceable through habeas corpus. See supra Part

Il.A. Thus, even the broadest construction of the

rule of non-inquiry would be trumped by a judicial

obligation to ensure compliance with FARRA. This

obligation, in turn, requires a federal court to inquire

into the potential treatment a petitioner may receive

at the hands of a foreign government. See

Mironescu, 480 F.3d at 671 (recognizing that federal

law embodied in FARRA now unambiguously makes

potential treatment on transfer relevant and

justiciable in habeas); cf Jn re Artt, 158 F.3d 462,

474-75 (9th Cir. 1998) (1985 U.S.-U.K. extradition

treaty mandates inquiry into British judicial

system).

Far from offending principles of international

comity or questioning the quality of the Iraqi

criminal justice system, G. Br. at 47, the district

court pursuant to a FARRA claim “would be required

to answer only the straightforward question of

whether a fugitive would likely face torture in the

requesting country.” Mironescu, 480 F.3d at 672.

And myriad decisions review identical inquiries

undertaken as part of asylum laws, see INS v.

Cardoza-Fonseca, 480 U.S. 421, 428 (1987) (alien

eligible for asylum upon demonstration of a “well-

founded fear of persecution” in his home country).

Moreover, even in the extradition framework, a

All of the cases cited by the government in support of

its contention that the rule of non-inquiry categorically bars

any judicial role predate the enactment of FARRA, except for

Prasoprat, 421 F.3d 1009, in which allegations of potential

torture on transfer were not raised by the petitioner.

-33-

habeas court may be called upon t) apply the

“political offense” exception, which requires a

sensitive judicial inquiry into the foreign sovereign’s

motivation for charging the habeas petitioner. See,

e.g., Ordinola v. Hackman, 478 F.3d 588, 595 (4th

Cir. 2007) (“the vast majority of modern-day

extradition treaties” provide a political offense

exception to extradition); Koskotas, 931 F.2d at 172-

73 (detailing nature of judicial inquiry under

political offense exception).

Not even the government’s unilateral

assurance that it would “object” to the transfer of

Omar and Munaf if “it believed that they would

likely be tortured,” G. Br. at 47, displaces that

judicial review mandated by federal law. See

Khouzam v. Hogan, No. 07-0992, slip op. at 19

(“consultation among members of the Executive

Branch ... does not satisfy the constraint of the

Fifth Amendment”).

Finally, even if the government chooses — or

is ordered by the court — to follow the procedures set

forth in the extradition statute, 18 U.S.C. § 3184; see

= Numerous courts have also issued injunctions barring

transfers of habeas petitioners out of DoD custody and into the

possibility of torture by a third country, despite government

contentions that such relief would violate the rule of non-

inquiry. See Al-Marri v. Bush, 2005 WL 774843 (D.D.C. 2005);

El-Banna v. Bush, 2005 WL 1903561 (D.D.C. 2005); A/-Joudi v.

Bush, 406 F. Supp. 2d. 13 (D.D.C. 2005); A/-Shihry v. Bush,

2005 WL 1384680 (D.D.C. 2005); Abdah v. Bush, 2005 WL

589812 (D.D.C. 2005). But see Al-Anazi v. Bush, 370 F. Supp.

2d. 188, 195 (D.D.C. 2005).

-34-

Brief of Amicus Curiae M. Cherif Bassiouni et a/,

the Habeas Petitioners could ultimately utilize

FARRA to challenge the Secretary of State’s decision

to certify his extraditability. See Cornejo-Barreto v.

Seifert, 218 F.3d 1004, 1015-16 (9th Cir. 2000) (in

light of FARRA, habeas petitioner could obtain

judicial review under APA of Secretary of State’s

decision to extradite in spite of asserted likelihood of

torture).

b. The Rule of Non-Inquiry Does Not Bar

Challenges to the Constitutionality of

U.S. Government Conduct.

Contrary to the government’s claim, Omar

and Munaf do not challenge whether the Iraqi

criminal system fails U.S. constitutional standards

or is otherwise procedurally defective. See G. Br. at

45-46. Instead, as specifically described, supra Part

II1.B. Omar and Munaf contend that U.S. officials, by

undertaking a series of unlawful actions in an

attempt to effect an extrajudicial transfer, are here

violating Omar and Munaf's due process rights. See

also R. Br. at 45-53.

A court is equally competent to judge the

constitutionality of U.S. actions whether they occur

at home or abroad. See Reid v. Covert, 354 U.S. 1, 7-

9 (1957). Similarly, an extradition or extra-judicial

transfer that violates a citizen’s constitutional rights

is clearly reviewable in habeas. In Mironescu, 480

F.3d at 671-72, the court specifically distinguished

extradition cases relied upon by the government,

including Neely v. Henkel, 180 U.S. 109, 123 (1901),

-35-

raising challenges to foreign trial systems and

barred by the rule of non-inquiry, from

constitutional challenges to U.S. government action

which could not be so barred. The court rejected the

claim that the executive has plenary extradition or

transfer power for, while the executive “has

unlimited discretion to refuse to extradite a fugitive,

it lacks the discretion to extradite a fugitive when

extradition would violate his constitutional rights.”

Id. at 670 (internal citations omitted). See also

Wang, 81 F.3d at 816 (affirming injunction issued

against deportation where habeas petitioner raised

substantive due process claims against US.

government actors “wholly independent of any

[claims] assertable under the INA”); Jn re Burt, 737

F.2d 1477, 1482-85 (7th Cir. 1984) (affirming district

court’s consideration of procedural due process claim

in habeas challenge to extradition). In sum, despite

the asserted foreign relations context of this case,

the judicial branch must retain its traditional role of

examining executive conduct “when individual

liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S.

at 536. Nothing less is at stake here.

c. The Rule of Non-Inquiry Itself Contains

a Well-Recognized [Exception for

Transfers Into Torture.

Finally, courts applying the rule of non-

inquiry themselves recognize an exception for

transfer based on a plausible fear of torture. See

Gallina, 278 F.2d at 79 (recognizing that courts may

block extradition in situations in which ‘relator,

upon extradition, would be subject to procedures or

-36-

punishment so antipathetic to a federal court’s sense

of decency”); accord Kin-Hong, 110 F.3d at 112;

Prushinowski v. Samples, 734 F.2d 1016, 1019 (4th

Cir. 1984); Lopez-Smith, 121 F.3d at 1322; Hoxha v.

Levi, 465 F.3d 554 (3d Cir. 2006). Torture is rightly

considered sui generis and thus manifestly distinct

from routine variations among criminal justice

systems that courts avoid evaluating. See Burt, 737

F.2d at 1485 n.11 (foreign state’s criminal process

may lose otherwise routine “presumption of fairness”

if relator demonstrates transfer would expose to

treatment “antipathetic to a federal court’s sense of

decency”); accord Parretti v. United States, 122 F.3d

758 (9th Cir. 1997). For this reason too, even

independent of CAT and FARRA, petitioners are

entitled to challenge in the district court their

transfer into possible torture.

CONCLUSION

For the foregoing reasons, the D.C. Circuit’s

decision in Geren v. Omar, No. 07-397, should be

affirmed and its decision in Munaf v. Geren, 06-166

should be vacated and remanded for further

proceedings.

Respectfully submitted,

BAHER AZMY JOHN G. GIBBONS”

JENNY-BROOKE CONDON LAWRENCE S. LUSTBERG

SETON HALL UNIVERSITY AVIDAN Y. COVER

SCHOOL OF LAW GIBBONS, P.C.

CENTER FOR SOCIALJUSTICE One Gateway Center,

Newark, NJ 07102 Newark, NJ 07102

(973) 642-8700 (973) 596-4500

February 28, 2008 * Counsel of Record

-38-

APPENDIX

Amicus Human Rights Watch (“HRW”) is a

non-profit organization established in 1978 that

investigates and reports on _ violations of

fundamental human rights in over 70 countries

worldwide. It is the largest international human

rights organization based in the United States. By

exposing and calling attention to human rights

abuses committed by state and non-state actors,

HRW seeks to bring public pressure upon offending

governments and others to end abusive prac-tices.

For the past six years, HRW has worked extensively

to document U.S. counterterrorism policies and

practices and to promote effective and lawful

responses to terrorist threats. HRW has monitored

and reported on human rights in Iraq since the early

1990s.

Amicus Human Rights First (““HRF”) is a non-

profit, nonpartisan organization that has worked

since 1978 to create a secure and humane world by

advancing justice, human dignity and respect for the

rule of law. HRF protects people at risk: refugees

who flee persecution, victims of crimes against

humanity or other mass human rights violations,

victims of discrimination, those whose rights are

eroded in the name of national security and human

rights advocates who are targeted for defending the

rights of others. HRF works to prevent violations

against these groups and to seek justice and

accountability for violations against them.

Amicus Center for Constitutional Rights

(“CCR”) is a non-profit legal and educational

A-1

organization dedicated to protecting and advancing

the rights guaranteed by the U.S. Constitution and

the Universal Declaration of Human Rights. CCR

uses litigation proactively to advance the law in a

positive direction, to empower poor communities and

communities of color, to guarantee the rights of

those with the fewest protections and least access to

legal resources, and to strengthen the broader

movement for constitutional and human rights. In

addition to CCR’s long history of advocating on

behalf of civil rights, CCR has been instrumental in

advancing the protection of international human

rights. Currently, CCR _ represents several

individuals who have been, or are in danger of being,

transferred from U.S. custody to the custody of

foreign governments despite known risks of torture

or cruel, inhuman or degrading treatment.

Amicus Physicians for Human _ Rights

(“PHR”), since 1986, has mobilized health

professionals to advance the health and dignity of all

people through action that promotes respect for

human rights. PHR has been in the forefront of the

global fight against torture and was one of the lead

authors of the Istanbul Protocol on documenting

torture adopted by the United Nations in 1999. PHR

joins in this brief in support of constitutional

principles and international instruments prohibiting

torture.

Amicus Islamic Society of North America

(“ISNA”) was established in 1981 as an association of

Muslim organizations and individuals that provides

a common platform for presenting Islam, supporting

tf a A-2

Muslim communities, developing educational, social

and outreach programs and fostering good relations

with other religious communities, as well as with

civic and service organizations. ISNA is a founding

member of the National Religious Campaign Against

Torture and has been a consistent advocate for

human rights and dignity for all persons.

Amicus Evangelicals for Human Rights

(“EHR”) is a project of the National Religious

Campaign Against Torture that seeks to articulate a

compelling biblical case for a zero-tolerance stance

on torture by any government for any reason,

including the United States in its war on terror, and

advocate the application of that commitment in the

conduct of the U.S. war on terror. Founded in 2006,

HER focuses its education efforts on the evangelical

community and seeks to reaffirm the centrality of

human rights as an unshakeable biblical obligation

fundamental to an evangelical Christian social and

moral vision.

Amicus Muslim Advocates is a nonprofit

educational, charitable entity dedicated to promoting

and protecting freedom, justice and equality for all,

regardless of faith, using the tools of legal advocacy,

policy engagement and education and by serving as a

legal resource to promote the full participation of

Muslims in American civic life. Founded in 2005,

Muslim Advocates is a sister entity to the National

Association of Muslim Lawyers, a network of over

500 Muslim American legal professionals. Muslim

Advocates seeks to protect the founding values of our

nation and believes our nation and its people can be

A-3

safe and secure without sacrificing constitutional

rights and protections.