It is striking that the executive branch and intelligence services have sole discretion for
seeking, securing, and determining the reliability and sufficiency of diplomatic
assurances. The verification and reliability assessment required by the immigration
regulations lies with the Secretary of State and Attorney General and is completely
discretionary. In rendition cases, the State Department and CIA apparently are tasked
with securing and evaluating assurances.115 In returns from Guantánamo Bay, the
Department of Defense, in consultation with the State Department and other
government agencies, assumes that responsibility. Thus, although the reliability of
assurances to protect against torture is central to determining whether a transfer is
lawful, there is no provision for judicial review or other independent evaluation of
assurances in any transfer effected by the U.S. government based on them. The
executive branch essentially decides for itself whether its transfer of a person to the
custody of another government is legal.116
Access to due process is a cornerstone of both U.S. law and international human rights
standards. As the Association of the Bar of the City of New York has correctly pointed
out:
[T]he unfettered discretion the Executive Branch exercises in seeking
diplomatic assurances and making the unilateral decision to transfer an
individual pursuant to those assurances leaves the individual with no due
process protection or the safeguard of judicial oversight. This procedural
shortcoming likely violates international law. The United States has an
115
Mark Sherman, “Gonzales: U.S. Won’t Send Detainees to Torturers; Attorney General Alberto Gonzales
Said the United States does not Send Detainees to Nations Allowing Torture, but Once They are Transferred,
Can’t Ensure Good Treatment,” Miami Herald, March 8, 2005, p. 7: “Gonzales said the State Department and
the CIA obtain assurances that people will be humanely treated. In the case of countries with a history of
abusing prisoners, the United States ‘would, I would think in most cases, look for additional assurances that that
conduct won’t be repeated’.” Ibid.
116
The inability to challenge executive decisions regarding transfers to risk of torture based on diplomatic
assurances has been played out in other fora as well. In October 2004, a majority of the twenty-five active
judges in the Ninth Circuit Court of Appeals (San Francisco) voted to order a re-hearing of the Cornejo-Barreto
case before an eleven-judge panel. A three-judge panel ruled previously in the case that federal judges had no
authority to review an extradition proceeding for the possibility that an extraditee would be at risk of torture if
returned to the country that issued the extradition warrant. That court ruled that authority to make such
determinations regarding risk of torture lies exclusively with the secretary of state. Although the regulations that
govern the implementation of the Convention against Torture in extradition cases contain no express provision
for the use of diplomatic assurances against torture, such guarantees were a feature of this case and would
presumably have been one of the aspects of the extradition proceeding that would have been reviewable for
reliability and sufficiency if the appeals court had had an opportunity to rule that extradition proceedings can be
challenged in federal court for compliance with the U.S.’s Convention against Torture obligations. See Cornejoth
Barreto v. Siefert, 386 F.3d 938 (9 Cir., en banc, 2004). The case became moot when the foreign government
th
seeking Cornejo-Barreto’s extradition withdrew its request. See Cornejo-Barreto v. Siefert, 389 F3d 1307 (9
Cir. 2004).
39
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
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