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)