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June 10, 2015

U.S. set to extradite a Mexican citizen based on evidence allegedly obtained by torture

The case to extradite Jose Munoz Santos relies entirely on statements of two witnesses who alleged that their testimony had been obtained by police who tortured them in Mexico. The extradition court refused to consider the allegations of torture because they contradicted earlier witness statements incriminating Munoz Santos. The Ninth Circuit agreed, saying that the magistrate judge was not required to conduct a “mini-trial” on that issue.

Now, if an en banc panel does not correct that ruling, Munoz Santos will be extradited without investigation into whether the entire case against him was a product of torture.

This would be a deeply troubling violation of U.S. obligations under the Convention against Torture (“CAT”). Article 15 of the CAT prohibits the use of evidence obtained by torture in any judicial proceedings, including extradition proceedings. International abhorrence of torture is so strong that an individual need only raise a plausible argument that evidence supporting his extradition was obtained by torture. At that point, under the CAT, the United States must investigate the allegations.

Munoz Santos raised a highly plausible argument. Both witnesses against him stated that their statements were obtained by torture. A 2006 U.S. State Department report on Mexico reported that during the time period in question “use[d] torture with near impunity” to obtain confessions and other statements. A more recent report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment noted that torture remained “generalized in Mexico.”

That same Special Rapporteur, Juan Méndez, today published an op-ed in the San Francisco Chronicle calling on the United States to reject the extradition request if Mexico cannot show that the original statements were un-coerced. Allowing torture-tainted evidence in U.S. courts, Méndez noted, calls into question the county’s commitment to the rule of our law.

Under the rule as it stands, whenever evidence of torture contradicts earlier statements — which it almost always will — courts, which play a crucial role in enforcing Article 15, may simply ignore it.

That is why, in an amicus brief submitted with the ACLU and its Southern California branch, the Center for Constitutional Rights, and Human Rights Watch, Human Rights First has asked the Ninth Circuit to reconsider how it treats allegedly torture-tainted evidence in extradition proceedings. The consequences go far beyond this case. The rule established here will strengthen—or weaken—the prohibition on the use of evidence obtained by torture, a fundamental principle of both national and international law. And it will tell people fleeing torture and persecution what kind of protection they can expect from the United States.