implementation of the Torture Convention, and further failure to comply with the
reporting guidelines of the Committee in this regard.”134
The judge, however, went further than merely assessing al-Jailani’s individual risk of
torture or ill-treatment. He concluded that sending al-Jailani back would also have
broader policy implications. Returning al-Jailani would not only violate the U.S.’s
Convention against Torture obligations, “but could also be construed as sanctioning
Yemen’s use of torture by its security forces thereby bringing the United States into
disrepute in the international community.”135
Despite all this, the judge determined that assurances that al-Jailani would not be
tortured would be sufficient to justify his removal to Yemen if they could be deemed
credible. It is difficult to see how any assurances from a government with Yemen’s
record of torture could be considered credible or reliable. But the loopholes noted above
with respect to the U.S. regulations almost surely account for this apparently
contradictory ruling. When the judge found that credible assurances would permit alJailani’s removal to Yemen, he was simply following the regulations that apply in
immigration proceedings.136 The executive branch’s discretion to secure and evaluate
diplomatic assurances leave open the very real possibility that it would deem assurances
from Yemen to be credible. Also, because al-Jailani enjoys no procedural rights in
relation to diplomatic assurances under the regulations, he would not be entitled to
challenge the assurances in a court.
Yemen not only routinely violates the prohibition against torture, but as noted in the alJailani decision, openly admits that it deems such abuses to be necessary in its efforts to
combat terrorism. Under these circumstances, diplomatic assurances from the Yemeni
authorities would be inherently unreliable and should not be acceptable as a safeguard
against torture. Moreover, if the U.S. were to return al-Jailani to Yemen based on
assurances, the policy considerations so eloquently articulated in the decision still obtain:
accepting assurances for the protection of one person could be perceived as sanctioning
Yemen’s abusive practices for the vast majority of persons vulnerable to torture and illtreatment.
134
Ibid., p. 12: “The Committee faults Yemen for invoking any justification for using torture, including its fight
against terrorism and difficulties associated with this serious problem. Of particular interest to this court is the
Committee’s concern that Yemen has failed to establish a comprehensive definition of torture, and faulted the
government for the lack of transparency in its detention centers operated by its security forces.”
135
Ibid., p. 14
136
8 C.F.R. § 208.18(c)(3) - Diplomatic assurances against torture obtained by the Secretary of State.
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
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