Parry: International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty

John T. Parry (Lewis & Clark Law School) has posted International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty. Here's the abstract:

The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”

This article uses the rule of non-inquiry to assess the current state of extradition law and the theories that support it. I focus first on the doctrinal status of the rule, with the goal of demonstrating that it is more flexible than courts often purport to believe and that a more explicitly functional approach would better serve the issues that the non-inquiry doctrine encompasses and implicates. Throughout my doctrinal discussion, I also consider the proper scope of habeas corpus review of extradition decisions.

This article also has broader ambitions. First, my discussion of non-inquiry and the scope of habeas review seeks to historicize these doctrines. Second, I argue for unfreezing extradition law and putting it back into the overall structure of federal law and the current of legal change. Third, my suggestions for the rule of non-inquiry also work within and seek to incorporate some of the many changes in international law that have taken place since the rule was first announced. Fourth, I contest the notion that foreign affairs concerns require courts to refuse to inquire into constitutional or human rights claims.

Finally, I explore the rule of non-inquiry’s reliance on a traditional notion of national, territorial sovereignty. Some writers have pointed to the Supreme Court’s decision in Boumediene v. Bush as an example of changing conceptions of sovereignty. By contrast, the Munaf majority repeatedly stressed and relied upon Iraq’s “sovereign right” or “prerogative” to punish offenses “committed on its soil.” Thus, on the same day in June 2008, the Supreme Court declared both that sovereignty has changed, and that it remains the same. This article asks whether Munaf’s conception of sovereignty was already outdated or whether it gives the lie to claims that sovereignty has eroded. I also consider a third option, that both conceptions can exist and be consistent with each other in U.S. law, and the article ends by exploring what that coexistence might mean.