How far may federal judges go in second-guessing an extradition decision made by the Secretary of State?
The question lay at the heart of “Subjected to Torture: Chevron and the Limitations on Judicial Review of Final Executive Orders for International Extradition,” the title of a talk given before faculty and students on March 20 by Catholic University law student Elyssa Lacson, Class of 2013.
Grounded in the facts of two fairly recent cases, Lacson’s presentation explored the executive vs. judicial jurisdictional issues that arise when judges intervene in a matter that is generally considered to be within the province of diplomacy and statehood, as happened in 2009’s Trinidad y Garcia v. Benov. In that case, the Ninth Circuit Court of Appeals prevented the extradition of a Filipino citizen who asserted he would be tortured if he was returned to the Philippines. Despite his plea, the requested extradition was approved by then-Secretary of State Condoleezza Rice.
Through a unique application of the Administrative Procedure Act (APA), the Ninth Circuit put the brakes on the return of the Filipino man. Lacson’s abstract of her paper read in part:
“Application of the APA in extradition proceedings is a judicial attempt to reinvigorate our country’s adherence to the Convention Against Torture. The article analyzes the applicability of APA review on matters of foreign affairs and finds that the Secretary of State enjoys Chevron deference in matters like international extradition. Although the APA defense will not be successful as applied through Trinidad, the APA does provide a legislative solution which, if employed by Congress for future extradition cases, will fully achieve the humanitarian goals of the United States.”
The Columbus School of Law Student Scholars Series was instituted in 2009 by Professor A.G. Harmon, who provided the welcome and introduction of Lacson. The series aims to recognize notable legal scholarship produced by members of the student body during the academic year and to foster the skills associated with presenting and defending that scholarship in a professional conference-style setting.
Professor Michael F. Noone served as respondent for the discussion. Lacson has secured a position with the Federal Trade Commission following graduation in May.