Al-Nouri v. Blinken

Full title: Ali Yousif Ahmed Al-Nouri, Petitioner, v. Antony Blinken, et al.…

Court: United States District Court, District of Arizona

Date published: Jun 26, 2023

CV-22-00633-PHX-GMS (DMF) (D. Ariz. Jun. 26, 2023)

Opinion

CV-22-00633-PHX-GMS (DMF)

06-26-2023

Ali Yousif Ahmed Al-Nouri, Petitioner, v. Antony Blinken, et al., Respondents.

HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE

HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE

This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 11 at 3)¹

1 Citation to the habeas record as “(Doc.)” indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-00633-PHX-GMS (DM?). Citation to the record for Petitioner's extradition proceedings, Case No. 20-MJ-08033-PHX-MTM, is indicated as “(Ex. Doc.).”

On April 15, 2022, through appointed counsel from Petitioner's previous extradition proceedings, Petitioner Ali Yousif Ahmed Al-Nouri (“Petitioner”), who is confined in the Central Arizona Florence Correctional Complex in Florence, Arizona, filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”). (Doc. 1; Id. at ¶18) Also on April 15, 2022, Petitioner filed an Application for Leave to Proceed In Forma Pauperis. (Doc. 2) On April 26, 2022, Petitioner moved for appointment of counsel, requesting that previously appointed extradition counsel be appointed to represent Petitioner in these habeas proceedings nunc pro tunc to April 1, 2022. (Doc. 6)

On May 12, 2022, the Court granted Petitioner's motion for appointment of counsel, appointing attorney David Eisenberg pursuant to 28 U.S.C. § 3006(a)(2)(B) as had been requested. (Doc. 8 at 1-2; Doc. 20) Applying Local Rule of Civil Procedure 3.5(c), the Court denied Petitioner's Application for Leave to Proceed In Forma Pauperis. (Doc. 8 at 1) On May 16, 2022, Petitioner paid the $5.00 filing fee in full. (Doc. 10)

On May 26, 2022, the Court ordered Respondents to answer the Petition, and the Court set a briefing schedule. (Doc. 11) On August 19, 2022, Respondents filed a Response/Answer in Opposition to Ali Yousif Ahmed Al-Nouri's Petition for a Writ of Habeas Corpus. (Doc. 26) After multiple extensions of time (Docs. 29, 31), Petitioner filed a reply on December 23, 2022 (Doc. 32). In addition, on December 25, 2022, Petitioner filed an exhibit consisting of four declarations arising out of an international investigation. (Docs. 33, 35) Petitioner requests that the Court consider his exhibit (the four declarations) in support of the Petition. (Id.)

After careful review of the record and applicable law, and as outlined below, it is recommended that the United States Attorney General and the United States Secretary of State be dismissed as Respondents from this matter for lack of personal jurisdiction. It is further recommended that the United States Marshal for the District of Arizona be substituted to reflect Van Bayless as the Acting United States Marshal for the District of Arizona. It is also recommended that the Petition be denied and that the Clerk of Court be directed to terminate this matter.

I. BACKGROUND

A. Events Leading to Complaint for Extradition Against Petitioner

Petitioner's habeas Petition arises out of an Order Certifying Extradition issued by United States Magistrate Judge Michael T. Morrissey in District of Arizona case number 20-MJ-08033-PHX-MTM (hereinafter, “Extradition Court”). (Ex. Doc. 302) In a March 31, 2022, Order docketed on April 1, 2022, Judge Morrissey summarized the events leading to the extradition proceedings:

In June 2006, Lieutenant Issam Hussein of the Fallujah police in Iraq was murdered when a group of men emerged from their vehicles and fired pistols and automatic weapons at him. Several months later in October 2006, Officer Khalid Mohammed was murdered in similar fashion.

The government of Iraq asserts these murders were carried out by al-Qaeda of Iraq (“AQI”), the transnational affiliate of al-Qaeda operating in Iraq. In particular, Iraq asserts [Petitioner] Ali Yousif Ahmed Al-Nouri was a local AQI leader involved in planning and executing Lieutenant Hussein's and Officer Mohammed's murders.

On behalf of the government of Iraq, the United States filed a Complaint seeking [Petitioner's] extradition pursuant to the Extradition Treaty between Iraq and the United States.

(Ex. Doc. 302 at 1) (citing Ex. Doc. 3)²

2 The Order Certifying Extradition uses the name “Mohammad” and “Mohammed” interchangeably, as does Petitioner in these habeas proceedings.

The extradition record reflects that on May 12, 2019, the Iraqi government issued an “Arrest and Investigation Warrant” signed by Judge Jabbar Hussain ‘Alaywi³ of the “Higher Judicial Council, Magistrate Court of Al-Karkh, Specialized in Terrorism Cases.” (Ex. Doc. 3-1 at 49-50 (unredacted); Ex. Doc. 3-3 at 49-50 (redacted))⁴ The warrant directed that law enforcement arrest Petitioner and “detain him in [their] custody until he is presented to [the court] to respond to the charges against him which is punishable according to article 406/1/A of the Iraqi Penal Code 111 for year 1969, amended.” The Arrest and Investigation Warrant was accompanied by an informational document signed by Judge Jabbar Hussain ‘Alaywi, which included description of Petitioner, citation to the revised Iraqi Penal Code including the nature of the charge as murder and the maximum penalty of death, as well as a case summary. (Ex. Doc. 3-1 at 49-50, 51-53 (unredacted); Ex. Doc. 3-3 at 49-50, 51-53 (redacted)) The case summary stated:

3 The Iraqi extradition materials primarily spell the Iraqi judge's name as Judge Jabbar Hussain ‘Alaywi but occasionally spell the name as Judge Jabbar Hussein or Judge Jabbar Hussein ‘Alaywi. For consistency, this Court will use Judge Jabbar Hussain ‘Alaywi when referring to the judge in the Republic of Iraq who issued the Arrest and Investigation Warrant.

4 Sealed, unredacted documents supporting the extradition request are filed at Ex. Docs. 31 and 3-2. Redacted versions of these documents are filed at Ex. Docs. 3-3 and 3-4.

Based on Intelligence Reports received by this court of law providing

important information regarding the work of the accused (Ali Yousif Ahmed Al-Nouri) and his inclusion in armed terrorist groups working on disturbing the security and stability of the country, He participated with members of his group in the killing of Iraqi police officers to include First Lieutenant Issam Ahmed Hussein, Police Office Khalid Ibrahim Mohammad. The court decided to issue an arrest warrant for the above listed accused under Article 406/1 of the amended Iraqi Penal Code 111 for the year 1969 as well as to organize an extradition file for the above accused.

(Ex. Doc. 3-1 at 53 (unredacted); Ex. Doc. 3-3 at 53 (redacted))

On October 17, 2019, pursuant to “the treaty of legal and judicial cooperation between Iraq and the, United States, number 12 for the year 1936” (“Extradition Treaty”),⁵the Iraqi Ministry of Foreign Affairs submitted a request for extradition of Petitioner to the United States Embassy in Baghdad. (Ex. Doc. 3-1 at 6 (unredacted); Ex. Doc. 3-3 at 6 (redacted)) In addition to the Arrest and Investigative Warrant and accompanying informational document described above, attachments to the extradition request included cooperator and witness statements, statements from each victim's family, documentation to identify Petitioner, a copy of the Extradition Treaty, and descriptions of pertinent Iraqi laws. (Ex. Docs. 3-1, 3-2, 3-3, 3-4) On October 24, 2019, David Ian Hopper, Consul General of the United States at the United States Embassy in Baghdad, signed a certification legally authenticating the Iraqi extradition request pursuant to 18 U.S.C. § 3190. (Ex. Doc. 3-1 at 15 (unredacted); Ex. Doc. 3-3 at 15 (redacted))

5 Extradition Treaty, Iraq-U.S., Apr. 23, 1936, 170 LNTS 267, 49 Stat. 3380. (Doc. 3-3 at 7-14 (redacted); see also Doc. 3-1 at 7-14 (unredacted))

B. Extradition Proceedings in 20-MJ-08033-PHX-MTM

On January 29, 2020, the United States (or “the government”) filed a Complaint Pursuant to 18 U.S.C. § 3184 (“Extradition Complaint”) against Petitioner based on the Republic of Iraq's extradition request. (Ex. Doc. 3) The Extradition Complaint sought Petitioner's arrest for “two premeditated murders” in violation of the Iraqi Penal Code. (Id. at 2, 6) An arrest warrant issued based on the Extradition Complaint, and Petitioner was arrested by the United States Marshal in Phoenix, Arizona on January 30, 2020. (Ex. Doc. 11)

The Office of the Federal Public Defender for the District of Arizona, specifically attorney Jami Johnson, was appointed to represent Petitioner during the extradition proceedings.⁶ (Ex. Doc. 7) Pursuant to defense counsel's request, the Extradition Court set a detention hearing for February 13, 2020. (Ex. Doc. 12) Following multiple requests from both parties to continue the detention hearing (see Ex. Docs. 15, 17, 20, 21, 32, 33, 83), a detention hearing was held on May 8 and 15, 2020 (Ex. Doc. 72, 86). At the detention hearing, five character witnesses for Petitioner testified, and the parties discussed concerns regarding the prevalence of COVID-19 in detention facilities. (Ex. Docs. 72, 97) Both parties submitted detention memoranda (Ex. Docs. 59, 60) as well as supplemental memoranda and exhibits (Ex. Docs. 60, 64, 66, 74, 78, 79, 89, 90, 91, 94, 96).

6 On July 20, 2021, the Office of the Federal Public Defender for the District of Arizona substituted attorney Ruben Iniguez as counsel for Petitioner. (Ex. Doc. 264) On July 26, 2021, attorney Daniel Kaplan of the Office of the Federal Public Defender for the District of Arizona also entered appearance for Petitioner. (Ex. Doc. 266)

On September 21, 2020, the Extradition Court ordered Petitioner detained during the extradition proceedings. (Ex. Doc. 110) On September 28, 2020, the Extradition Court set Petitioner's extradition hearing for January 21, 2021. (Ex. Doc. 116)

On October 5, 2020, Petitioner filed an interlocutory appeal of the Extradition Court's detention order (Ex. Doc. 110) to the Ninth Circuit Court of Appeals. (Ex. Doc. 112) On January 12, 2021, the Ninth Circuit denied Petitioner's interlocutory appeal for lack of jurisdiction, finding that the detention appeal would be properly brought before a United States District Judge. (Ex. Docs. 164, 175)

On November 9, 2020, Petitioner filed an Emergency Motion to Reopen Detention in the Extradition Court. (Ex. Doc. 127) The United States responded (Ex. Doc. 132), and Petitioner replied (Ex. Docs. 141, 146). On February 19, 2021, the Extradition Court denied Petitioner's Motion to Reopen Detention. (Ex. Doc. 179) Petitioner appealed the Extradition Court's detention order, requesting de novo review from a United States District Judge. (Ex. Doc. 182) The United States responded (Ex. Doc. 190), and Petitioner replied (Ex. Doc. 207). On May 20, 2021, District Judge Michael T. Liburdi denied Petitioner's motion to revoke detention order and ordered Petitioner's continued detention pending proceedings. (Ex. Doc. 239)

On December 2, 2020, Petitioner moved to continue the extradition hearing, which the United States opposed. (Ex. Doc. 142; see also Ex. Docs. 147, 153) In Petitioner's Motion, he asked the Court to continue the January 21, 2021, extradition hearing as well as the related disclosure and briefing deadlines for a period of six months because (a) the global COVID-19 pandemic affected the ability of defense counsel to conduct an investigation in Fallujah, Iraq into the underlying criminal allegations referenced in the extradition complaint, and (b) the failure to conduct a complete investigation of the underlying criminal activity in Fallujah, Iraq “would constitute a breach of counsel's ethical duties.” (Ex. Doc. 142 at 2-3.) Petitioner supported his request with two sworn declarations-one from the executive director of One World Research (Ex. Doc. 142-2), a public interest research and investigation firm contacted by Petitioner's defense counsel in early 2020, and another from an Arizona ethics attorney who has been retained by Petitioner's defense counsel (Ex. Doc. 142-3). Petitioner asserted that, to prepare for his extradition hearing, defense investigators needed to travel to Fallujah, Iraq to investigate the alleged offenses. (Ex. Doc. 142 at 2.) Moreover, Petitioner's retained legal ethics expert averred that, to discharge their ethical obligations, Petitioner's counsel must, “at a minimum . . . attempt to interview eye-witnesses to the alleged crimes and other material witnesses, review all reports and other records concerning the crimes and the extradition proceedings, and once adequately apprised of the facts, research and consider all potential procedural and substantive defenses.” (Ex. Doc. 142-3 at ¶ 14(a)). Following oral argument held on December 15, 2020, the Extradition Court continued Petitioner's extradition hearing to May 25, 2021. (Ex. Doc. 159)

Regarding experts, on November 23, 2020, the United States filed a notice that it intended to introduce the expert opinion of Professor Craig Whiteside (“Professor Whiteside”) as a rebuttal to Petitioner's disclosure of expert Professor Haider Ala Hamoudi (“Professor Hamoudi”). (Ex. Doc. 128; see also Ex. Doc. 176)

On February 26, 2021, Petitioner filed a Motion to Compel Discovery. (Ex. Doc. 180) The United States responded (Ex. Doc. 184), and Petitioner replied (Ex. Doc. 186). On March 31, 2021, the Extradition Court granted Petitioner's motion in part, ordering that the United States “shall disclose exculpatory materials in its possession, whether or not those materials resulted from its ‘domestic criminal investigation' or other source, that would undercut or obliterate probable cause that [Petitioner] committed the crimes alleged in the Complaint.” (Ex. Doc. 191 at 7)

On April 15, 2021, Petitioner filed a second motion to continue the extradition hearing, requesting a six-month continuance and, in the alternative, that the extradition “hearing be bifurcated and that the hearing on May 25, 2021 proceed as to legal issues only with a hearing as to probable cause be held at a later date, after [Petitioner] has had an opportunity to conduct a competent investigation.” (Ex. Doc. 194 at 3) The motion asserted that:

[a]s a result of the worsening health and safety conditions in Iraq, counsel for [Petitioner] have been unable to comply with their ethical duty to investigate as that duty was explained by Professor Keith Swisher in [Petitioner]'s December 2 motion to continue. (Doc. 142-3.) As Professor Swisher explained, the lack of any investigation whatsoever into the existence of potentially explanatory evidence renders representation ineffective per se. Failure of the duty to investigate is however especially prejudicial to [Petitioner] in light of the extreme improbability that [Petitioner] actually committed the charged acts, which naturally and inevitably corresponds to a higher likelihood that explanatory evidence that undermines probable cause will be located during a competent investigation.

(Id. at 2) The United States opposed the requested continuance and also opposed bifurcation. (Ex. Doc. 196) On April 21, 2021, the Extradition Court denied Petitioner's motion. (Ex. Doc. 204) In doing so, the Extradition Court wrote:

[Petitioner] identifies no specific evidence he seeks to collect and no specific witnesses he wishes to interview in Iraq. [Petitioner] does not explain what evidence the requested investigation might reasonably be expected to reveal, and how that evidence would “explain away” probable cause rather than contradict evidence submitted by the requesting foreign government; the Ninth Circuit makes clear that contradictory evidence is not relevant to

extradition proceedings. Santos v. Thomas, 830 F.3d 987, 992 (9th Cir. 2016). Instead, [Petitioner] states in conclusory fashion that it is extremely improbable that [Petitioner] committed the charged acts, “which naturally and inevitably corresponds to a higher likelihood that explanatory evidence that undermines probable cause will be located during a competent investigation.” (Id. at 2). These unsupported representations are insufficient to grant a second six-month continuance.

[Petitioner] seeks a continuance to conduct an investigation that exceeds the scope of what is permissible in an extradition proceeding. In an extradition hearing, the defendant has no right to cross-examine witnesses or rebut evidence introduced by the prosecutor. Oen Yin-Choy, 858 F.2d at 1406-07, citing Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984). Impeachment of a witness is also not permitted. In re Extradition of Handanovic, 826 F.Supp.2d 1237, 1239 (D. Or. 2011). The Magistrate Judge conducting the extradition “does not weigh conflicting evidence and make factual determinations” as to whether extradition is warranted. Id. Evidence such as the polygraph examination submitted by [Petitioner] (doc. 194-2) in support of this motion is the sort of evidence that is inadmissible at an extradition proceeding, because it is evidence that seeks to contradict the evidence submitted by the requesting government.

(Id. at 2, 3) Petitioner moved for reconsideration of the Extradition Court's denial of Petitioner's motion. (Ex. Doc. 208) On May 5, 2021, the Extradition Court denied Petitioner's motion for reconsideration. (Ex. Doc. 213)

On April 16, 2021, the parties filed their respective extradition memoranda. (Ex. Docs. 199, 200) The United States asserted that the requirements to certify Petitioner's extraditability had been met. (Ex. Doc. 199) Petitioner argued that he had not been allowed a meaningful opportunity to rebut probable cause; that the charged offenses were non-extraditable political offenses; that he was not charged with a crime enumerated in the Extradition Treaty; that the extradition request did not comply with the Extradition Treaty's terms and did not include a valid arrest warrant; that Petitioner was exempt from punishment for premeditated murder; that the Extradition Court should decline certification of extraditability due to Petitioner's potential treatment in Iraq, including potential violations of the Convention Against Torture; that the Extradition Treaty was nullified by wars fought between the parties following the Extradition Treaty's ratification; that the United States could not extradite its own citizen under the Extradition Treaty; and that the Extradition Court should not apply the “rule of non-contradiction” at a hearing on probable cause. (Ex. Doc. 200 at 3-53) The United States attached the expert report of Professor Whiteside to its memorandum (Ex. Doc. 199-2), and Petitioner attached the expert report of Professor Hamoudi to his memorandum (Ex. Doc. 200-3). On May 14, 2021, the parties filed their responsive memoranda. (Ex. Docs. 226, 228)

In advance of the extradition hearing, the United States filed a motion in limine to exclude Petitioner's expert opinion evidence pertaining to: (1) the status of the Iraqi criminal justice system; (2) the availability of the death penalty in Iraq; (3) whether Iraq would extradite its own citizens to the United States; and (4) procedural defects in the Iraqi documents submitted in support of the Extradition Complaint. (Ex. Doc. 211) On the same date, Petitioner filed a motion in limine to exclude a declaration of United States Department of State Attorney Advisor Tom Heinemann that the Extradition Treaty did not require that Petitioner be formally charged with a crime. (Ex. Doc. 212) Each party responded to the opposing party's motion in limine. (Ex. Docs. 224, 225) The Extradition Court granted in part the United States' motion in limine regarding Professor Hamoudi's report and opinions insofar as ruling that the Extradition Court would not consider Section IV(C) of Professor Hamoudi's report and would consider only those portions of Section IV(A) of Professor Hamoudi's report which discuss whether Petitioner has been “charged with” a crime covered by the extradition treaty. (Ex. Doc. 238 at 5) The Extradition Court denied Petitioner's motion in limine. (Id.)

On May 20, 2021, Petitioner moved to compel the United States to “produce any and all evidence in its possession, custody, or control from any source regarding the involvement of [Omer Mohammad] Hameed in the investigation or prosecution of” Petitioner's case. (Ex. Doc. 236 at 1) Petitioner argued that Hameed attempted to extort Petitioner's family, causing the allegations against Petitioner to be produced through threats or bribery, and argued that such information would help the Extradition Court determine whether evidence in the extradition packet was improperly obtained. (Id. at 4-6) The United States opposed the motion. (Ex. Docs. 241, 242)

On May 21, 2021, the Extradition Court continued the extradition hearing to July 15, 2021, with an order to follow. (Ex. Doc. 243; see also Ex. Doc. 247 at 2) In the subsequent May 28, 2021, Order, the Extradition Court reserved ruling on Petitioner's motion to compel pending additional time for the United States to conduct review materials in its possession and ordered the United States to “disclose evidence that would undercut or obliterate probable cause that [Petitioner] committed the crimes alleged in the Complaint by corroborating [Petitioner's] family's claims[.]” (Ex. Doc. 247 at 2) On June 9, 2021, Petitioner filed a supplement to his motion to compel. (Ex. Doc. 250) On July 14, 2021, the Extradition Court denied Petitioner's motion to compel (Ex. Doc. 258), stating that:

[i]n seeking discovery about Hameed, the motion to compel seeks evidence that is merely contradictory, not obliterative or explanatory. Essentially, [Petitioner] seeks impeachment evidence that certain witnesses were somehow influenced by unnamed persons in Iraq, presumably at Hameed's behest, to give false statements, which [Petitioner] speculates caused the filing of the Extradition Complaint.

(Id. at 3) The Extradition Court concluded that “[c]onsidering the breadth of the discovery request, the lack of corroborating materials to support the claims central to the motion to compel, and the limited nature of discovery in extradition proceedings, [Petitioner]'s motion to compel is denied.” (Id. at 5)

On July 12, 2021, the United States submitted to the Extradition Court supplemental extradition documents provided by the Republic of Iraq and certified pursuant to 18 U.S.C. § 3190. (Ex. Docs. 254, 255)⁷ The submission of these supplemental extradition documents was unopposed. (Id.) The supplement included a statement from Judge Jabbar Hussain ‘Alaywi regarding the operation of Iraqi criminal procedure and Article A/1/406 of the Iraqi Penal Code referenced in the Arrest and Investigation Warrant issued in Iraq. (Ex. Doc. 254-2) In the signed statement, Judge Jabbar Hussain ‘Alaywi described that “after [Petitioner] has been extradited, he will be investigated according to due process and he will be questioned regarding the charge that he is facing and his statement recorded in this regards while documenting whatever evidence he presents to deny it.” (Id. at 3) Judge Jabbar Hussain ‘Alaywi's statement also described the formal investigative process, including questioning of Petitioner and Petitioner's right to counsel during the formal investigative process. (Id. at 3-4)

7 The United States obtained an English translation of Iraq's supplement, prepared by an FBI linguist assigned to the Office of The Legal Attache at the U.S. Embassy in Baghdad, Iraq. (Ex. Docs. 254 at 3; Ex. Doc. 254-3 at 2-3)

Judge Jabbar Hussain ‘Alaywi's statement thereafter explained that “[i]f the court finds there is sufficient evidence to prosecute the defendant, a court order will be made to refer him to the relevant court.” (Id. at 4). Conversely, Judge Jabbar Hussain ‘Alaywi's statement thereafter explains that “if there is not sufficient evidence to refer him, then an order will be issued for his release and the case will be temporarily dropped, indicating the reasons for that.” (Id.) Also, Judge Jabbar Hussain ‘Alaywi explained in his statement that “if the [Petitioner] did not appear before the investigative judge or investigator, and could not be arrested despite all efforts to force his attendance, established under this Code; or if he escaped after he was arrested and detained, and there was enough evidence to refer him to trial, then the investigative court will issue his referral to the relevant court to be tried in abstentia[.]” (Id. at 3)

On July 15, 2021, the Extradition Court held Petitioner's extradition hearing, including hearing arguments from both parties as well as testimony from Petitioner's expert witness, Professor Haider Ala Hamoudi, and the United States' expert witness, Professor Craig Whiteside, in supplement to their reports. (Ex. Docs. 259, 273) No live witnesses were presented other than the parties' expert witnesses. (Ex. Doc. 273) Citing Santos v. Thomas, 830 F.3d 987, 993 (9th Cir. 2016), the Extradition Court did not allow cross examination or other impeachment of expert witnesses as the extradition hearing. (Ex. Doc. 273 at 11-13) On July 26, 2021, Petitioner moved for reconsideration of the Extradition Court's ruling barring impeachment of expert witnesses. (Ex. Doc. 266) On August 13, 2021, the Extradition Court denied Petitioner's motion for reconsideration. (Ex. Doc. 272)

On October 8, 2021, the Extradition Court granted the motion of the Federal Public Defender's Office to withdraw as counsel for Petitioner, but appointed District of Arizona CJA attorney James Park to represent Petitioner rather than the attorneys in the Federal Public Defender's Office for the Eastern District of California proposed in the motion to withdraw, whom Petitioner's attorneys Ruben Iniquez and Daniel Kaplan had described as “well-suited” to take over representation of Petitioner. (Ex. Doc. 283) On October 16, 2021, attorney Park moved for leave to submit supplemental briefing and to become familiar with the case prior to the Extradition Court's decision regarding certification of extraditability. (Ex. Doc. 286) After the United States responded in opposition (Ex. Doc. 290), the Extradition Court denied attorney Park's motion without prejudice as unripe because Petitioner had articulated no specific issue for which he sought to submit supplemental briefing (Ex. Doc. 291). The Extradition Court ordered that if an issue arose requiring supplemental briefing, Petitioner could renew his motion. (Id.) At no time did Petitioner renew his motion.

On October 22, 2021, following a motion for partial reconsideration of the appointment of attorney Park filed by Petitioner's former attorneys Ruben Iniquez and Daniel Kaplan (Ex. Doc. 288), the Extradition Court appointed the Federal Public Defender's Office of the Eastern District of California, specifically attorneys Rachelle Barbour and Carolyn Wiggin, to serve as co-counsel for Petitioner with attorney Park (Ex. Doc. 289). On January 5, 2022, the Extradition Court granted attorney Park's motion to withdraw as counsel for Petitioner. (Ex. Doc. 293) On January 7, 2022, Petitioner's counsel from the Federal Public Defender's Office of the Eastern District of California filed a “Request for Court Determination of Status of Appointed Counsel” stating that Petitioner “has repeatedly conveyed to undersigned counsel that he does not wish them to represent him and that he seeks alternate counsel.” (Ex. Doc. 294) Following a hearing held on January 21, 2022 (Ex. Doc. 299), the Extradition Court granted the Federal Public Defender's Office of the Eastern District of California's motion to withdraw and appointed CJA attorney David Eisenberg as counsel for Petitioner (Ex. Doc. 300).

Over eight months after the extradition hearing, the Extradition Court issued an April 1, 2022, order certifying Petitioner as extraditable under 18 U.S.C. § 3184 for both offenses referenced in the Extradition Complaint, the 2006 murders of Lieutenant Issam Hussein and Officer Khalid Mohammad. (Ex. Doc. 302) In issuing this certification, the Extradition Court concluded that it had subject matter jurisdiction to conduct the extradition proceedings as well as personal jurisdiction over Petitioner (Id. at 2); that the Extradition Treaty between the United States and Iraq remained in force and effect at all relevant times (Id. at 2-3); that the two murders were covered by the Extradition Treaty because murder was listed in the Extradition Treaty as an extraditable crime, the offenses were criminalized in both countries, and the offenses were substantially analogous in both countries (Id. at 3-4); and that there was competent evidence supporting probable cause: (1) that Petitioner had committed or was an accessory or co-conspirator in the 2006 murder of Lieutenant Issam Hussein, and (2) that Petitioner had participated in the 2006 murder of Officer Khalid Mohammad (Id. at 4-15).

The Extradition Court summarized that in challenge to extradition certification, Petitioner had argued that the Iraqi arrest warrant was insufficient; that the arrest warrant did not show that Petitioner had already been charged with a crime; and that Article IV of the Extradition Treaty, stating that “[n]o person surrendered shall be tried for any crime other than that for which he was surrendered without the consent of the surrendering High Contracting Party[,]” was unenforceable. (Id. at 15-20) The Extradition Court further acknowledged that as defenses against extradition, Petitioner had argued that he would face “abusive and arbitrary procedures” in the Iraqi criminal justice system; that he was exempt from punishment for the offenses due to Iraq's suspension of the death penalty at the time of the charged offenses; that extradition would violate the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”); that the Extradition Treaty did not permit extradition of a United States citizen; and that the charged offenses were non-extraditable pursuant to the political offense exception. (Id. at 21-32) The Extradition Court addressed and rejected each of Petitioner's challenges to the extradition packet as well as Petitioner's defenses against extradition. (Id. at 15-32)

On April 1, 2022, the Extradition Court's Order Certifying Extradition was transmitted to the Office of the Legal Advisor for the United States Department of State. (Ex. Doc. 303) Pursuant to the representation of the United States Attorney's Office that the Secretary of State would suspend review of Petitioner's extradition pending habeas proceedings initiated within fourteen days of the Order Certifying Extradition (Doc. 1 at 910), Petitioner filed the present habeas action on April 15, 2022 (Id. at 1).

II. HABEAS CLAIMS

In his April 15, 2022, Petition, Petitioner raises twelve grounds for relief. (Doc. 1 at 10-77) Claims 1 through 4 assert violations of due process during the extradition proceedings. (Id. at 1-30) In Claim 1, Petitioner asserts that the Extradition Court's denial of his April 15, 2021, motion to continue the extradition hearing violated his Fifth Amendment due process rights by depriving him of an opportunity to conduct an international investigation. (Id. at 10-26) In Claim 2, Petitioner asserts that the Extradition Court's denial of his motions to compel discovery violated his Fifth Amendment due process rights by denying Petitioner the ability to investigate the integrity of witnesses who made statements. (Id. at 26-29) In Claim 3, Petitioner argues that the Extradition Court violated his Fifth Amendment due process rights by granting the United States' motion to exclude portions of the opinion of Petitioner's expert witness. (Id. at 29-30) In Claim 4, Petitioner argues that the Extradition Court violated his Fifth Amendment due process rights by barring him from impeaching the United States' expert witness at the extradition hearing. (Id. at 30)

In Claim 5, Petitioner argues that the accusations against him regard political offenses for which Petitioner may not be extradited under Article III of the Extradition Treaty. (Id. at 31-49) In Claim 6, Petitioner asserts that the United States did not present evidence establishing probable cause that Petitioner committed the charged offenses. (Id. at 49-53) In Claim 7, Petitioner argues that he has not been “charged with” an extraditable crime under Articles I and II of the Extradition Treaty. (Id. at 54-61) In Claim 8, Petitioner argues that “[t]he Court should decline to certify [Petitioner's] extradition in light of the abusive and arbitrary procedures he would face in the Iraqi criminal justice system.” (Id. at 61-65) In Claim 9, Petitioner asserts that his extradition would violate the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or “CAT”). (Id. at 65-68) In Claim 10, Petitioner asserts that as a United States citizen he may not be extradited under the Extradition Treaty. (Id. at 69-73) In Claim 11,⁸ Petitioner argues that he “is exempt from punishment for the only crime mentioned in the complaint that is among the extraditable crimes enumerated in” the Extradition Treaty. (Id. at 73-74) In Claim 12,⁹ Petitioner argues that the Extradition Treaty has been nullified by wars fought between the United States and Iraq following ratification of the Extradition Treaty in 1936. (Id. at 74-77)

8 Petitioner labels this claim as Claim 8, but based on the order of Petitioner's claims, the Court will designate this claim as Ground 11.

9 Petitioner labels this claim as Claim 9, but based on the order of Petitioner's claims, the Court will designate this claim as Ground 12.

In response to the Petition, Respondents assert that the United States Attorney General and United States Secretary of State are improper respondents and should be dismissed. (Doc. 26 at 2, n. 2) In response to the claims in the Petition, Respondents argue that each of Petitioner's claims is foreclosed by relevant law. As to Petitioner's Claims 1, 2, 3, and 4 regarding due process violations during the extradition proceedings, Respondents argue that Petitioner, as a fugitive in extradition proceedings,¹⁰ lacked the particular due process rights asserted by Petitioner. (Id. at 54-64) In addition, Respondents assert that the Extradition Court's rulings were proper. (Id.) As for Petitioner's Claim 5, Respondents argue that the offenses in the Extradition Complaint are not political offenses. (Id. at 24-35) As for Petitioner's Claim 6 regarding probable cause, Respondents argue that Petitioner misconstrues the relevant evidence and “ignores the deferential habeas standard of review applicable to the Extradition Court's probable cause finding.” (Id. at 3, 12-20) Respondents argue that the evidence in the record support the Extradition Court's probable cause finding. (Id.) As for Petitioner's Claim 7, Respondents argue that the extradition documents reflect that Petitioner has been charged with an offense under the Extradition Treaty. (Id. at 35-48) Respondents argue that Petitioner's Claim 8 and 9 regarding his potential treatment in Iraq following extradition are matters solely reserved for the consideration of the Secretary of State after judicial extradition proceedings conclude (Id. at 64-72) As for Petitioner's Claims 10 and 11, Respondents assert that the Extradition Treaty permits extradition of United States citizens (Id. at 50-53), and that Petitioner is not exempt from punishment for the charged offenses (Id. at 48-50). As for Petitioner's Claim 12 that the Extradition Treaty has been nullified by subsequent wars, Respondents assert that the Extradition Treaty is still in effect. (Id. at 20-23)

10 Courts traditionally refer to the subject of an international extradition request as a “fugitive.” See, e.g., Santos, 830 F.2d at 991. When discussing a non-specific subject of extradition proceedings, this Court uses “fugitive,” but when discussing a non-specific subject of habeas proceedings in review of an extradition order, this Court uses “petitioner.” When referring to Petitioner individually, this Court uses “Petitioner.”

In his reply, Petitioner emphasizes his argument that the United States has not established probable cause and urges the Court to grant Petitioner relief from the Extradition Court's Order Certifying Extradition for various reasons raised in his Petition. (Doc. 32) As to Claim 9, Petitioner acknowledges that claims regarding torture under the CAT are left to the consideration of the Secretary of State but asserts that the Secretary of State “must make a finding on the matter of torture if the individual raises the issue following an extradition order.” (Id. at 21) As to Claim 12, Petitioner “recognizes that the treaty of extradition was in effect” but states that “he does not waive any of his arguments concerning the validity of [the Extradition Treaty's] provisions and the method in which it has been used in his case. (Id. at 24) Submitted with Petitioner's reply are four declarations obtained through an international investigation on Petitioner's behalf; the declarations were signed in October 2022 and December 2022. (Doc. 35; Doc. 33 at 2) Petitioner argues that these declarations are pertinent to the issue of probable cause and demonstrate that the Extradition Court denied Petitioner due process in refusing to grant Petitioner a continuance to conduct an international investigation. (Doc. 32 at 8-9; Doc. 33 at 1-4) Petitioner requests that this Court consider such declarations as part of the Court's habeas review. (Doc. 33 at 1-4) Petitioner represents that the United States opposes this Court's consideration of the declarations. (Id. at 3)

III. PROPER RESPONDENTS

In his Petition, Petitioner names as Respondents: Antony Blinken, the United States Secretary of State; Merrick B. Garland, the United States Attorney General; David Gonzales, the United States Marshal for the District of Arizona; and Kris Kline, the Complex Warden for the Central Arizona Florence Correctional Complex, where Petitioner is currently confined. (Doc. 1 at 1) In footnote 2 of their response, Respondents argue that the United States Attorney General and the United States Secretary of State are not proper respondents in this matter and should be dismissed. (Doc. 26 at 2, n.2) Respondents assert that the proper respondent is either the United States Marshal for the District of Arizona or the warden of the facility where Petitioner is being held. (Id.) Given the other named Respondents, Respondents do not assert that this Court lacks overall personal jurisdiction. See Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (failure to name a proper respondent deprives a court of personal jurisdiction).

An application for a writ of habeas corpus must reflect “the name of the person who has custody over” the petitioner, 28 U.S.C. § 2242, and a writ, when issued, “shall be directed to the person having custody of the person detained.” 28 U.S.C. § 2243. Typically, there is “only one proper respondent to a given prisoner's habeas petition.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). If the application for habeas corpus challenges a petitioner's “present physical confinement [...] the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Id.; see also Brittingham v. United States, 982 F.2d 378, 379-80 (9th Cir. 1992) (proper respondent is warden of facility where petitioner was confined because warden was the day-to-day custodian). As such, “the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent.” Padilla, 542 U.S. at 439; see also Zhenli Ye Gon v. DC Office of Atty. Gen., 825 F.Supp.2d 271, 273 (D.D.C. 2011) (warden of jail proper respondent over petitioner challenging extradition).¹¹ Citing Padilla, 542 U.S. at 435, Respondents correctly assert that “the proper respondent here is either the U.S. Marshal and/or ‘the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.'” (Doc. 26 at 2, n.2) Petitioner does not argue otherwise in his reply. (Doc. 32)

11 See, e.g., Manrique v. Kolc, 65 F.4th 1037, 1039 (9th Cir. 2023) (Acting United States Marshal for the Northern District of California is sole respondent in extradition proceedings).

Under applicable law, the United States Attorney General and the United States Secretary of State are not proper Respondents. It is therefore recommended that the United States Attorney General and the United States Secretary of State be dismissed from this matter for lack of personal jurisdiction as requested by Respondents. Further, it is recommended that Van Bayless, Acting United States Marshal for the District of Arizona, be substituted for retired United States Marshal David Gonzales.

IV. EVALUATION OF PETITIONER'S HABEAS CLAIMS

A. Habeas Review of Certificate of Extraditability

Because a certification of extraditability may not be challenged on direct appeal, “the ‘only available avenue to challenge an extradition order' is through a habeas petition.” Santos, 830 F.3d at 1001 (quoting Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006)). Regarding a petition for habeas corpus seeking review of an order certifying extradition, the court may only review “whether: (1) the extradition magistrate had jurisdiction over the individual sought, (2) the treaty was in force and the accused's alleged offense fell within the treaty's terms, and (3) there is any competent evidence supporting the probable cause determination of the magistrate.” Vo, 447 F.3d at 1240 (internal citations omitted). A petitioner carries the burden to show, by a preponderance of the evidence, that he is entitled to relief from the certificate of extraditability. See Walker v. Johnston, 312 U.S. 275, 286 (1941); Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011).

A habeas court reviewing a certificate of extraditability reviews questions of law de novo and reviews questions of fact for clear error. Vo, 447 F.3d at 1240. Mixed questions of law and fact are reviewed de novo. Id. Because a magistrate judge's finding of probable cause is “not a finding of fact ‘in the sense that the court has weighed the evidence and resolved disputed factual issues,' it must be upheld if there is any competent evidence in the record to support it.” Quinn, 783 F.2d 776, 791 (9th Cir. 1986) (quoting Caplan v. Vokes, 649 F.2d 1336, 1342 n.10 (9th Cir. 1981); other citations omitted); Santos, 830 F.3d at 1008 (The “inquiry on habeas review is whether any competent evidence supports the extradition court's probable cause finding.”).

Where the extradition court denies a discovery request, the reviewing court considers whether the extradition court committed an abuse of discretion. Prasoprat v. Benov, 421 F.3d 1009, 1014 (9th Cir. 2005) (citing Emami v. United States Dist. Court, 834 F.2d 1444, 1452 (9th Cir. 1987)); Matter of Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986); see also Quinn, 783 F.2d at 817 n.41. Further, a court overseeing extradition proceedings has discretion over the admission of evidence offered by the fugitive. Hooker, 573 F.2d at 1369; see also Santos, 830 F.3d at 1007. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply in extradition hearings. Santos, 830 F.3d at 992; Then v. Melendez, 92 F.3d 851, 855 (9th Cir. 1996); Fed. R. Crim. P. 1(a)(5)(A).

On habeas review, the district court may consider newly discovered evidence presented during habeas review of a certificate of extraditability when such evidence “casts substantial doubt on the determination of probable cause.” See, e.g., Na-Yuet v. Heuston, 690 F.Supp. 1008, 1011 (S.D. Fla. 1988); Gill v. Imundi, 747 F.Supp. 1028, 1046 (S.D.N.Y. 1990); c.f. Peroff v. Hylton, 563 F.2d 1099, 1101 (4th Cir. 1977) (despite newly discovered evidence introduced at habeas, government produced ample evidence to support probable cause); Venckiene v. United States, 328 F.Supp.3d 845, 869 (N.D. Ill. 2018) (government evidence supported probable cause despite new evidence introduced in habeas proceedings).

B. Analysis

1. Claim 1

a. Parties' Arguments

In Claim 1, Petitioner argues that the Extradition Court's denial of his April 15, 2021, motion to continue the extradition hearing violated Petitioner's Fifth Amendment due process right by depriving Petitioner of an opportunity to investigate and thereby preventing his counsel from presenting an effective defense. (Doc. 1 at 10-26) Petitioner states that due to the COVID-19 pandemic, his investigator was unable to conduct an investigation in Iraq prior to the July 15, 2021, extradition hearing. (Id. at 10-13) Without such an investigation, Petitioner argues that his counsel was unable to provide competent representation under the Arizona Rules of Professional Conduct 42 and Local Rule of Civil Procedure for the District of Arizona (“LRCiv”) 83.2(e). (Id. at 13, 18-19) Petitioner argues that he met each factor supporting the grant of a continuance, as (1) Petitioner was diligent in preparing his defense prior to the scheduled hearing, (2) a continuance would have provided relevant information, (3) a continuance would not have inconvenienced the parties, and (4) Petitioner was prejudiced without evidence that could have been “crucial and dispositive.” (Id. at 20-23) (citing United States v. Flynt, 756 F.2d 1352, 1358-59 (9th Cir. 1985)). If the Extradition Court had allowed a continuance for Petitioner's investigation, Petitioner contends that he could have “obliterated” the government's showing of probable cause. (Id. at 23-26) At the time of Petitioner's April 15, 2022, Petition (one year after the filing of the motion to continue the extradition hearing on which Claim 1 is based), Petitioner had not conducted such investigation. (Doc. 28 at 1-2)

Respondents assert that the Extradition Court properly denied Petitioner's second motion to continue the extradition hearing, as well as Petitioner's motion for reconsideration, because Petitioner did not have a right to additional international investigation, Petitioner had not shown that any evidence discovered would have been permitted in the extradition hearing, and a motion to continue would have improperly delayed the extradition hearing. (Doc. 26 at 59-62) Respondents assert that Petitioner sought to challenge the credibility of the Iraqi witnesses, evidence which could not be introduced at the extradition hearing and which Petitioner did not have a due process right to investigate. (Id. at 61) Respondents highlight that Petitioner's extradition proceedings had been pending for over fourteen months at the time of Petitioner's motion to continue and argue that an additional six-month continuance would have affected “the government's interest in fulfilling its treaty obligations in a timely manner[.]” (Id. at 59) Respondents also point out that Petitioner, as a fugitive in extradition proceedings, did not have the same rights as a defendant in a regular criminal proceeding. (Id. at 53) Further, Respondents assert that Petitioner has not presented any case law recognizing a right to investigate the Iraqi criminal charges. (Id. at 60)

In his reply, Petitioner asserts that “[a]s it has turned out, the steps outlined in the investigative plan submitted by One World Research (“OWR”) did produce evidence highly pertinent to probable cause (compare pages 2 and 8 of EX Doc. 210 with the results submitted in the sealed materials).” (Doc. 32 at 11). Referring to the four October 2022 and December 2022 declarations obtained through an international investigation and submitted with Petitioner's reply (Doc. 35; Doc. 33 at 2), Petitioner argues that:

[s]ome of what [Petitioner] raises goes to the mere perception of witnesses as to events; other evidence, which he developed in his own investigation, goes farther: it addresses the fundamental issue of whether he actually did commit the murders. In either case, what he raises goes to whether Iraq can show probable cause. Witnesses who have information directly contrary to the central question of who committed the murders are not to be rejected because they present a mini-trial.

(Doc. 32 at 10) Petitioner further asserts that “the additional time it took to conduct an onsite investigation in Fallujah and elsewhere produced a 180[degree] swing in eye witness statements disclaiming [Petitioner's] participation in the murder of Lieutenant Hussein and a deepening concern that the statements as to his alleged involvement in Officer Mohammed's killing are reliable.” (Id. at 9)

b. Extradition Court Proceedings

The Extradition Complaint was filed on January 29, 2020, and Petitioner was arrested the next day. (Ex. Docs. 3, 11) At the time of Petitioner's April 15, 2021, motion to continue (Ex. Doc. 194), the extradition hearing was scheduled for May 25, 2021 (Ex. Doc. 177).¹² Previously, Petitioner had moved for a six-month continuance of the extradition hearing set for January 2021 due to the effects of the global COVID-19 pandemic on the ability of Petitioner's legal team to conduct an investigation in Fallujah, Iraq, and the Extradition Court had granted a four-month continuance. (Ex. Docs. 142, 159)

12 Later, on May 21, 2021, the Extradition Court continued the extradition hearing to July 15, 2021, to allow additional time for certain disclosures. (Docs. 243, 247)

Petitioner's April 15, 2021, motion requested a six-month continuance of the May 2021 extradition hearing and, in the alternative, that the extradition “hearing be bifurcated and that the hearing on May 25, 2021 proceed as to legal issues only with a hearing as to probable cause be held at a later date, after [Petitioner] has had an opportunity to conduct a competent investigation.” (Ex. Doc. 194 at 3) Petitioner argued that public health conditions in Iraq continued to prevent an investigation by Petitioner's legal team into the evidence presented on the Iraqi government's behalf in the extradition proceedings. (Ex. Doc. 194 at 1-11) Petitioner argued that “[t]he improbability that [Petitioner] committed [the alleged] or similar acts raises significantly the possibility that there exists relevant, admissible explanatory information regarding how these allegations came about, and defense counsel must be provided with an opportunity to attempt to locate such evidence.” (Id. at 2) Petitioner's motion included a declaration of Bridget Prince, Executive Director of One World Research, attesting to the impossibility of conducting an investigation in Iraq at the time due to surging COVID-19 infections and associated travel restrictions and bans as well as security concerns. (Ex. Doc. 194-1 at 2-3) Petitioner also attached a polygraph examination report reflecting that on April 7, 2021, Petitioner passed a polygraph examination in which he denied involvement in either of the killings and denied involvement with groups who killed police. (Ex. Doc. 194-2 at 2-11)

The United States opposed the requested continuance. (Ex. Doc. 196)

On April 21, 2021, the Extradition Court denied Petitioner's second motion for continuance, concluding that “the interest the government has in fulfilling its treaty obligations with foreign states in a timely manner, the likelihood that granting the continuance will afford [Petitioner] the relief sought, and the previous continuances and extensions granted” weighed against granting a continuance. (Ex. Doc. 204 at 2) The Extradition Court determined that Petitioner had not explained how evidence would “explain away” probable cause as opposed to merely contradicting evidence, the latter of which the Extradition Court found is irrelevant to extradition proceedings. (Id.) (citing Santos, 830 F.3d at 992). Further, the Extradition Court determined that Petitioner sought impermissible evidence in the limited scope of an extradition hearing. (Id. at 2-3) In an extradition hearing, Petitioner would not be able to cross-examine witnesses, rebut prosecutorial evidence, or impeach witnesses, because the Extradition Court found that it could only look for “any” evidence of probable cause, as opposing to requiring a showing of “uncontroverted evidence[.]” (Id. at 3)

On April 29, 2021, Petitioner moved for reconsideration of the Extradition Court's denial. (Ex. Doc. 208) Petitioner argued that the decision in Matter of Extradition of Ameen, 2021 WL 1564520 (E.D. Cal. Apr. 21, 2021), in which an extradition court admitted and relied on evidence discovered through an international investigation, demonstrated the importance of conducting an investigation in Petitioner's case. (Id. at 35) Petitioner also asserted that he had a concrete plan for investigation. (Id. at 3) With his motion for reconsideration, Petitioner filed under seal an exhibit listing several witnesses he intended to interview, setting forth his reasons for intending to interview each witness, and describing video evidence that Petitioner intended to procure, the latter of which Petitioner claimed was “part of the Iraqi investigative file” and “was either not provided by Iraq to the United States or was not turned over by the United States to [Petitioner].” (Ex. Doc. 214 at 2-9; Ex. Docs. 209, 210, 213) Petitioner asserted that he had not previously disclosed “the details of his proposed investigation in his motion to continue, because such information constitutes protected attorney work-product, the disclosure of which to the United States could reasonably be expect[ed] to harm his legal case.” (Ex. Doc. 208 at 3) Petitioner argued that evidence obtained through an investigation in Iraq could undermine probable cause, just as evidence obtained through an investigation in Ameen had led the court in Ameen to find that the government had not established probable cause. (Id. at 3-5)

On May 5, 2021, the Extradition Court denied Petitioner's motion for reconsideration. (Ex. Doc. 213) The Extradition Court found that the decision in Ameen did not alter the Extradition Court's decision because the petitioner in Ameen had shown that he was not present at the location of the offenses. (Id. at 2-4) The Extradition Court noted that Petitioner had admitted to United States law enforcement before his arrest on the Extradition Complaint that he was in Fallujah, Iraq at the time of the two 2006 murders. (Id. at 2) Further, the Extradition Court found that Petitioner's motion for reconsideration did not meet the requirements of LRCiv 7.2(g) because Petitioner “fail[ed] to show why this discovery plan could not have been raised earlier with reasonable diligence when [Petitioner] first sought a second continuance[.]” (Id. at 3) The Extradition Court reviewed the exhibit “setting forth why [Petitioner]'s investigators wish to travel to Iraq” and stated that “the Court is not persuaded that [Petitioner]'s plan, even if carried out after an indefinite delay in these proceedings, would result in evidence that would be admissible in an extradition proceeding.” (Id. at 3) (footnote omitted)¹³

13 Regarding indefinite delay, the Extradition Court noted that “neither the Motion for Continuance nor the Motion to Reconsider offer any reason to think that, after six months, the security situation in Iraq will have also improved to the point that [Petitioner]'s proposed investigation may be safely conducted.” (Ex. Doc. 213 at 3, n. 2)

Later, on May 21, 2021, the Extradition Court continued the extradition hearing from May 25, 2021, to July 15, 2021, to allow additional time for specific disclosures by the United States ordered by the Extradition Court pursuant to motion to compel proceedings. (Ex. Docs. 243, 247)

c. Applicable Law

The decision to grant a continuance is within the Extradition Court's discretion and depends on the unique circumstances of each case. Ungar v. Sarafite, 376 U.S. 575, 58990 (1964) (“matter of continuance is traditionally within the discretion of the trial judge” and “[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied”). There is “no mechanical test[] for deciding when a denial of a continuance is so arbitrary as to violate due process.” Id. at 589.

In the appellate context, where a court's denial of a continuance “will not be disturbed on appeal absent clear abuse of that discretion[,]” the Ninth Circuit has identified four factors for consideration: (1) a petitioner's “diligence in his efforts to ready his defense prior to the date set for hearing[,]” (2) the likelihood “that the need for a continuance could have been met if the continuance had been granted[,]” (3) “the extent to which granting the continuance would have inconvenienced the court and the opposing party,” and (4) the extent to which the petitioner might have suffered harm as a result of the denial. United States v. Flynt, 756 F.2d at 1358, 1359.¹⁴

14 Respondents argue that Flynt is inapposite to extradition proceedings because Flynt considered motions to continue in the context of criminal trials, but the Ninth Circuit has applied Flynt to a variety of cases outside criminal trials. See, e.g., Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001) (intellectual property); Benton v. Legacy Health, 2022 WL 17369218, at *1 (9th Cir. Dec. 2, 2022) (Section 1983); Rodriguez v. Pierce County, 267 Fed.Appx. 556, 557 (9th Cir. 2008) (employment discrimination).

d. Discussion

i. Diligence

As for diligence, Petitioner filed his second motion to continue over a month in advance of the scheduled extradition hearing. (Ex. Doc. 177, 194) Petitioner's second motion to continue did not detail the evidence sought through an international investigation for reasons Petitioner explained in his motion for reconsideration (Ex. Doc. 194), but Petitioner did so two weeks later in the motion for reconsideration following the issuance of a pertinent judicial opinion from another district in the Ninth Circuit (Ex. Doc. 208). Particularly given the unique circumstances created by COVID-19, the Court finds that Petitioner acted with diligence.

ii. Usefulness

Regarding whether a continuance would have met the need for a continuance, Petitioner did not show that the evidence sought through investigation would have been admissible, nor did he show that an investigation could be safely pursued in Iraq within a six-month period of the requested continuance. Notably regarding the latter, the declarations produced by Petitioner's investigation were not signed until October 2022 and December 2022. (Doc. 35; Doc. 33 at 2)¹⁵ For a continuance to be useful, the continuance would have needed to be over eighteen months, not the six months requested by Petitioner in April 2021. Bifurcation, as Petitioner alternatively requested, would have delayed completion of the extradition hearing over a year and a half to after December 2022.

15 Before the declarations were filed in these habeas proceedings, Petitioner requested and was granted two extensions of time for filing his reply in support of the Petition. (Docs. 28, 29, 30, 31) Petitioner's first motion for extension of time to file a reply stated that “this additional period of time [is requested] so that One World Research (“OWR”), the investigative group retained by his counsel, can undertake an investigation into the sufficiency of the probable cause evidence supplied by Iraq, the country seeking the return of [Petitioner]. OWR planned to go to Iraq in 2021 to conduct such an investigation, but the inquiry had to be postponed due to the physically dangerous situation in Iraq at that time and the presence of covid, which curtailed travel all over the world.” (Doc. 28 at 1-2)

The Extradition Court's role was to “determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.” Santos, 830 F.3d at 991. Petitioner did not have a right to introduce evidence that contradicted the government's evidence and could only introduce evidence that would “explain away” probable cause. Santos, 830 F.3d at 992-93 (discussing difference between explanatory and contradictory evidence). In his second motion for continuance, Petitioner argued that conditions in Iraq related to COVID-19 prevented an investigation to procure potential explanatory evidence that undermined probable cause. (Ex. Doc. 194 at 1-3) To his second motion for continuance, Petitioner attached a declaration of Bridget Prince attesting to the impossibility of conducting an investigation in Iraq at the time (Ex. Doc. 194-1 at 2-3), as well as a report for a polygraph examination of Petitioner, conducted on April 7, 2021, reflecting that Petitioner passed the polygraph examination in which he denied involvement in either of the killings and denied involvement with groups who killed police (Id. at 2-11). Yet, Petitioner did not detail what evidence he expected to discover through an investigation in Iraq, nor did he detail how such evidence would be explanatory admissible evidence as opposed to inadmissible contradictory evidence. Without a showing from Petitioner as to how an investigation would produce evidence explaining away probable cause, the Extradition Court had no assurance that the investigation would produce any evidence that would be admissible and appropriate in an extradition hearing.

In his Petition, Petitioner again relies on the decision in Ameen as support for his argument that an investigation could produce exonerating evidence. (Doc. 1 at 16) Petitioner states that as a result of an investigation in Ameen, the extradition court in Ameen denied a certificate of extraditability. (Id.) However, as the Extradition Court here found (Ex. Doc. 213 at 2), the investigation in Ameen produced evidence that Ameen was not located in Iraq at the time of the charged offenses, thereby creating a geographical alibi and obliterating probable cause. Ameen, 2021 WL 1564520, at *9-12, 16. Petitioner has not argued that he was not present in Iraq at the time of the charged offenses, nor does he argue that an investigation even had the potential to produce evidence similar to the definitive alibi evidence in Ameen-namely that Petitioner was not in Iraq at the time of the murders of Lieutenant Hussein and Officer Mohammad. To the contrary, Petitioner has not disputed that he was in Fallujah, Iraq, at the time of the two murders. (See, e.g., Ex. Doc. 213 at 2)¹⁶

16 The declarations submitted by Petitioner in these habeas proceedings support that Petitioner was in Iraq at the time of the murders. (Doc. 35)

As detailed in the exhibit submitted to the Extradition Court in support of Petitioner's motion to reconsider, Petitioner averred that he intended to interview witnesses to verify potentially falsified statements, to determine if statements were coerced, forged, or altered, and to determine circumstances surrounding certain statements. (Ex. Doc. 214) All but two of the witnesses Petitioner identified in his exhibit had already made statements regarding the murders of Lieutenant Hussein and Officer Mohammad, and Petitioner obviously had access to these statements given his ability to discuss the contents of the statements. (Id. at 2-8) As for the remaining two witnesses identified in the exhibit to the motion to reconsider, Petitioner claimed that the witnesses saw Petitioner attempting to help Lieutenant Hussein after the murder, as opposed to participating in the murder. (Id. at 9) Petitioner therefore wished “to interview these witnesses to obtain their explanatory evidence regarding [Petitioner's] reason for being in the market, a reason unrelated to the murder of” Lieutenant Hussein. (Id.) Finally, Petitioner sought a video recording of an alleged confession by someone with the same or similar name to Petitioner which Petitioner stated was in Iraq's possession. (Id.)

Petitioner's intended reason to interview witnesses who had already given statements goes to the credibility of such witnesses. Yet, questions of credibility were beyond the scope of the Extradition Court's role, and a fugitive does not have a right to impeach or cross-examine witnesses, nor rebut the government's evidence. Santos, 830 F.3d at 992-993. Where facts or credibility are contested, “[i]f the court cannot determine the credibility of the allegations (or other evidence) once it has examined them, the inquiry ends” and “[p]robable cause is not undermined[.]” Id. at 1007. As for the remaining two witnesses, Petitioner's conclusory statement that he sought explanatory evidence did not clearly show that the evidence sought would be admissible explanatory evidence rather than inadmissible contradictory evidence. Rather, by Petitioner's description of the information sought from the two witnesses, the information would be inadmissible contradictory evidence. Santos, 830 F.3d at 992 (“we have generally settled on the principle that ‘explanatory' evidence is evidence that ‘explains away or completely obliterates probable cause,' whereas contradictory evidence is that which ‘merely controverts the existence of probable cause, or raises a defense.'”).

Petitioner also argues that he sought evidence to show that witness statements were coerced, thus preventing such statements from constituting competent evidence to support probable cause. (Doc. 1 at 24) In Santos, the Ninth Circuit found that the district court should have considered statements from witnesses recanting prior testimony that was allegedly made under coercion because “evidence that a statement was obtained under torture or other coercion constitutes ‘explanatory' evidence generally admissible in an extradition proceeding.” Santos, 830 F.3d at 1005, 1007-08. Here, unlike in Santos, Petitioner did not make a showing to the Extradition Court that evidence existed demonstrating coercion or torture. Further, as the Ninth Circuit made clear in Santos:

the scope of our holding here is limited, and that our decision should not be taken as a license to engage in mini-trials on the question of coercion or torture. The extradition court does not have to determine which party's evidence represents the truth where the facts are contested. Where an extradition court first considers evidence that a statement was improperly obtained, but concludes that it is impossible to determine the credibility of the allegations without exceeding the scope of an extradition court's limited review, the court has fulfilled its obligation-as the extradition court did in Barapind. If the court cannot determine the credibility of the allegations (or other evidence) once it has examined them, the inquiry ends. Probable cause is not undermined, and the court must certify the extradition. See 18 U.S.C. § 3184.

Santos, 830 F.3d at 1007.

Importantly, even if an investigation might have produced both contradictory and explanatory evidence, the Extradition Court still maintained “broad discretion” as to how much explanatory evidence to admit. Santos, 830 F.3d at 1007-08. While “evidence of torture can properly be considered by the extradition court as ‘explanatory' evidence[,]” this “does not mean that all evidence of torture must be admitted.” Santos, 830 F.3d at 1007. The usefulness factor undercuts, rather than supports, Petitioner's due process claim.¹⁷

17 This conclusion is underscored by the results of the international investigation on behalf of Petitioner pending these habeas proceedings as discussed in Section IV(B)(1(d)(iv), infra, regarding extent of harm to Petitioner.

iii. Inconvenience

As the Extradition Court pointed out in its denial of Petitioner's motion for reconsideration of his second motion to continue, Petitioner's extradition proceedings had already been pending for sixteen months. (Ex. Doc. 213 at 1) The Extradition Court had previously granted a four-month continuance in response to Petitioner's first motion for a continuance (Ex. Doc. 159) and later continued the extradition hearing a second time in response to proceedings on a discovery motion filed by Petitioner (Ex. Docs. 243, 247). See David v. Attorney General of United States, 699 F.2d 411, 415-16 (7th Cir. 1983) (noting that the extradition judge “recessed the hearing twice to permit counsel to review certain documents and to interview the witnesses” in finding that the refusal to continue extradition hearing did not violate petitioner's due process right to effective assistance of counsel).

As the Extradition Court recognized, the United States had an interest “in fulfilling its treaty obligations with foreign states in a timely manner[.]” (Ex. Doc. 204 at 2) Moreover, the Extradition Court had an interest in timely managing the extradition proceedings and its own docket. Indeed, Petitioner did not obtain the first investigative statement until October 2022, which was over a year after the extradition hearing and over six months after the Extradition Court's ruling granting the certification of extradition. Inconvenience would have been great to the United States and to the Court had Petitioner been granted one or more additional continuances of the extradition hearing to allow for his defense team to conduct international investigation. Thus, inconvenience considerations do not support Petitioner's due process claim, but rather serve to undermine Petitioner's due process claim.

iv. Extent of Harm to Petitioner

Regarding the extent of harm to Petitioner from the denial of the second request for continuance, Respondents correctly point out that extradition hearings are not “mini-trials.” Santos, 830 F.3d at 1007. A fugitive is not extended the same rights as a criminal defendant. Lopez-Smith v. Hood, 951 F.Supp. 908, 912 (D. Ariz. 1996) (citing McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir. 1996)). Insofar as Petitioner argues that an adequate investigation is an essential component of presenting an effective defense (Doc. 1 at 19), as discussed above, Petitioner's right to present evidence at the extradition hearing was limited to evidence that explained the government's evidence. Santos, 830 F.3d at 992-93 (only explanatory, not contradictory, evidence from a petitioner is admissible). Moreover, the Iraqi government was not required to produce all the evidence in its possession, because the Extradition Court only had to find that “any” evidence supported probable cause. Vo, 447 F.3d at 1240. It was not the Extradition Court's role to weigh conflicting evidence or make determinations of fact, and such considerations are more appropriately addressed at a trial in Iraq, the requesting country. Barapind v. Enomoto, 400 F.3d 744, 749-50 (9th Cir. 2005). The extensive discussion of the usefulness factor, supra, applies to demonstrate that considerations of extent of harm to Petitioner do not support Petitioner's due process claim.

Further, over six months after the Extradition Court's April 1, 2022, Order Certifying Extradition, One World Research conducted an investigation in Iraq on Petitioner's behalf resulting in October 2022 and December 2022 declarations. (Doc. 33 at 1-2; Doc. 35) In support of his reply in support of the Petition, Petitioner submitted four declarations of witnesses and an investigator, obtained through One World Research's investigation in Iraq and dated between October and December 2022. (Doc. 35) Petitioner asserts that these declarations show that an investigation would have produced and did produce “evidence highly pertinent to probable cause[.]” (Doc. 33 at 2-3) However, as discussed above, only explanatory evidence would have been admissible in Petitioner's extradition proceedings. Santos, 830 F.3d at 992-93. Petitioner argues that the submitted declarations support a finding that he did not commit the two murders, but Petitioner does not show how the four declarations obtained through his investigation are explanatory and not inadmissible contradictory evidence in extradition proceedings.

Upon review of the declarations submitted in support of Petitioner's reply, it would have been soundly within the Extradition Court's discretion to find that the declarations are contradictory, inadmissible evidence had the extradition hearing been delayed for over a year and half awaiting the investigation to produce the declarations. As explained in by the Ninth Circuit in Santos:

[t]he difference between “explanatory” and “contradictory” evidence is easier stated than applied. The federal courts have struggled to distinguish between the two. See, e.g., Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir.2006) (“In practice,” the line between contradictory and explanatory evidence “is not easily drawn”); In re Extradition of Strunk, 293 F.Supp.2d 1117, 1122 (E.D.Cal.2003) (“The distinction between evidence which ‘explains' and evidence which ‘contradicts' seems metaphysical.”). Nevertheless, we have

generally settled on the principle that “explanatory” evidence is evidence that “explains away or completely obliterates probable cause,” whereas contradictory evidence is that which “merely controverts the existence of probable cause, or raises a defense.” Mainero, 164 F.3d at 1207 n. 7; see also Eain, 641 F.2d at 511 (“An accused in an extradition hearing has no right to contradict the demanding country's proof or to pose questions of credibility as in an ordinary trial, but only to offer evidence which explains or clarifies that proof.”); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) (holding that the extradition court had properly excluded evidence that “would in no way ‘explain'-or, as the district judge put it, ‘obliterate'-the government's evidence, but would only pose a conflict of credibility”). We have also described “contradictory” evidence as evidence “the credibility of which could not be assessed without a trial.” Barapind, 400 F.3d at 749-50. In practice, this means that an individual contesting extradition may not, for example, present alibi evidence, facts contradicting the government's proof, or evidence of defenses like insanity, as this tends to call into question the credibility of the government's offer of proof. Hooker, 573 F.2d at 1368. However, the accused may testify “to things which might have explained ambiguities or doubtful elements” in the government's case. Collins, 259 U.S. at 315-16, 42 S.Ct. 469. But he may not impeach government witnesses or produce witnesses whose testimony contradicts evidence already offered by the government. See Charlton, 229 U.S. at 461, 33 S.Ct. 945.

Santos, 830 F.3d at 992-93. Further, Ameen, cited by Petitioner, recognizes the distinction between contradictory and explanatory evidence in the alibi context:

The court previously indicated its intent to allow Ameen to present alibi evidence in this case. ECF No. 160 at 14. In so doing, the court distinguished between obliterative alibi evidence and alibi evidence that is merely contradictory. The court reasoned that the former should be admissible and the latter excluded. This court is not the first to draw this distinction. See In re Extradition of Gonzalez, 52 F.Supp.2d 725, 739 (W.D. La. 1999) (“Evidence of an alibi defense is therefore admissible if it negates or obliterates probable cause, but not if it merely controverts the evidence of the requesting country.”); In re Extradition of Valles, 268 F.Supp.2d 758, 772 (S.D. Tex. 2003) (“Respondent's evidence of an alibi defense is therefore admissible if it negates or obliterates probable cause.”); United States v. Andrade, No. 06-MC-9039, 2006 U.S. Dist. LEXIS 70040, at *10, 2006 WL 3628096, at *6 (D. Or. Sept. 25, 2006) (holding that “alibi evidence may be admissible if it absolutely negates or obliterates probable cause.”).

Ameen, 2021 WL 1564520, at *9.

Regarding the murder of Officer Mohammad, the declaration submitted by Petitioner with his reply supporting his Petition was made by an attorney licensed to practice law in Iraq who avers that he made contact with Eyewitness 2¹⁸ on December 5, 2022. (Doc. 35 at 10) The declaration reflects that the attorney tried to find Eyewitness 2 at a market. (Id.) A vendor at the market would not give the attorney the phone number of the witness, but instead the vendor represented that the vendor would call Eyewitness 2 from the vendor's phone. (Id.) The attorney reports the vendor made a call, the attorney spoke with the person on the phone, and the person on the phone stated that he “was not at the scene of the shooting and did not see anything.” (Id.) When the attorney asked that the person on the phone come and talk to the attorney in person, the person said they would do so in a few minutes. (Id.) The attorney then received a call from the brother of Officer Mohammad who told the attorney that the attorney had no right to question Eyewitness 2 without “an Iraqi judicial order or an official order from the Americans.” (Id.) The declaration states that Eyewitness 2 arrived at the market and spoke with the attorney but Eyewitness 2 “refused to answer any questions except in the presence of his cousins.” (Id.) The declaration does not go on to state whether or not questions were asked of Eyewitness 2 in the presence of the cousins or the answers to any additional questions that may have been asked in person. (Id.)

18 A previous sworn statement by the witness named in the sealed declaration was provided to the Extradition Court in support of extradition; the Extradition Court referred to such witness as Eyewitness 2 in the Extradition Court's Order Certifying Extradition. (Ex. Doc. 302 at 12; Ex. Doc. 3-1 at 75 (unredacted); Ex. Doc. 3-3 at 75 (redacted))

Consideration of the attorney's declaration would invite credibility determinations between the unsworn statements in the declaration and the sworn statement of Eyewitness 2 submitted in support of the extradition request.¹⁹ Consideration of the attorney's declaration in light of the sworn statement by Eyewitness 2 presented in support of the extradition request would require the Court to essentially have a “mini trial” in weighing of the circumstances, incentives, timing, and completeness of the contradictory unsworn statement purportedly made by Eyewitness 2 to an attorney in a market over the phone. The attorney's declaration is the type of evidence and these are the credibility and other considerations prohibited in extradition proceedings.

19 The statement of Eyewitness 2 submitted in support of the extradition request states on its face that Eyewitness 2 had been sworn before making the statement, contains a thumbprint of Eyewitness 2, and contains a signature of an Iraqi judge. (Ex. Doc. 3-1 at 75 (unredacted); Ex. Doc. 3-3 at 75 (redacted))

The same is true of the declarations submitted by Petitioner in reply regarding the murder of Lieutenant Hussein. (Doc. 35 at 2-3, 5-6) The three declarations submitted by Petitioner place Petitioner at the scene of the murder, but directly contradict witness and cooperator statements submitted in support of extradition that Petitioner participated in the murder of Lieutenant Hussein. (Id.)

An exhibit to the Extradition Complaint in the extradition proceedings reflects that a video recording confession by the murderers-seven persons were named in the exhibit as such murderers, including “Ali Yousif Ahmed”-was submitted as part of the complaint in Iraq by the victim's father in 2008. (Ex. Doc. 3-1 at 96 (unredacted); Ex. Doc. 3-3 at 96 (redacted)) This video was not submitted in support of extradition. Petitioner sought this video as part of Petitioner's planned investigation in Iraq, with apparent hope that it would reflect a confusion of identity based on persons with similar names. (Ex. Doc. 214 at 6-7, 9) Yet, no video recording of an alleged confession to the murder of Lieutenant Hussein by someone with the same or similar name to Petitioner was provided by Petitioner as part of the record in these proceedings, including after the investigation in Iraq on Petitioner's behalf in late 2022. Thus, Petitioner has not shown harm regarding such possibly explanatory evidence.

In sum, consideration of extent of harm to Petitioner does not support Petitioner's due process claim.

v. Petitioner's Claim 1 fails

It is clear from the record in the Extradition Court proceedings as well as these proceedings that the Extradition Court's denial of Petitioner's motion for continuance and motion to reconsider was not an abuse of discretion, let alone “so arbitrary as to violate” Petitioner's due process rights. Ungar, 376 U.S. at 589. Therefore, Petitioner's Claim 1 fails.

2. Claim 2

a. Parties' Arguments

In Claim 2 of the Petition, Petitioner argues that the Extradition Court's partial denial of his motion to compel discovery violated his Fifth Amendment due process rights. (Doc. 1 at 26-29) Based on the evidence discovered in Ameen, 2021 WL 1564520, and the timing of Petitioner's interviews and the Iraqi arrest warrant, Petitioner argues that the United States likely had information that was not made available to Petitioner. (Id. at 2728) Petitioner asserts that the extradition request in Ameen was a result of evidence falsified by the Federal Bureau of Investigation. (Id. at 27) Further, Petitioner claims that the allegations in Ameen were similar to those alleged against Petitioner, suggesting that the United States was also involved in the investigation of Petitioner's case. (Id. at 27-28) As such, Petitioner argues that the Extradition Court abused its discretion to deny Petitioner's request for evidence of benefits or promises to witnesses, as well as “statements by anyone pertaining to the Complaint and information pertaining to the United States' participation in the drafting of the Complaint for Extradition[.]” (Id. at 28) Petitioner argues that probable cause should have included evidence regarding the integrity of witnesses and the accuracy of the accusations against Petitioner. (Id.) Petitioner further urges his Petition arguments in his reply. (Doc. 32 at 11-12)

Respondents acknowledge that an extradition court has limited discretion to allow discovery in extradition proceedings and assert that the Extradition Court properly denied Petitioner's request for discovery. (Doc. 26 at 54-59) Respondents construe the Petition as focusing on two categories of discovery which had been sought by Petitioner: (1) impeachment evidence, which Respondents argue is inadmissible in extradition proceedings because such evidence is contradictory, not explanatory; and (2) witness statements, which Respondents argue that Petitioner has not shown would be relevant to a determination of probable cause. (Id. at 57-59) In support of their arguments, Respondents assert that the Ninth Circuit has regularly upheld denials of discovery requests in extradition proceedings where a fugitive has not shown the relevance of the evidence sought. (Id. at 58)

b. Extradition Court Proceedings

In Petitioner's February 26, 2021, motion to compel (Ex. Doc. 180), Petitioner sought an order from the Extradition Court that the United States produce to Petitioner:

1. Any and all information of whatever form, source, or nature in the possession, custody, or control of any agency or division of the United states [sic] that tends to exculpate [Petitioner] of the acts alleged in the document docketed at Dkt. No 3 in this case (herein after “the Complaint,”) either through indicating his innocence or through the potential impeachment of any witness against [Petitioner]. “Exculpatory information” as used in this request should be understood to have the meaning given to it by Brady vs. Maryland, 373 U.S. 83 (1963) and progeny. Such information includes but is not limited to any information that suggests that [Petitioner] may not have committed the actions alleged in the Complaint, and/or that some other individual may have committed the actions alleged in the Complaint. It moreover includes but is not limited to any information suggesting that any individual who provided a statement for use in the Complaint has at any time in the past made a statement inconsistent with the statement included in the Complaint.

2. Any and all information of whatever form, source, or nature in the possession, custody, or control of any agency or division of the United states [sic] suggesting that any person who provided information or statements for us in Complaint received any benefit, or promise of future benefit, from the United States or any of its agencies or divisions, or from any other government, or any other person in connection with his or her provision of such information or statements.

3. Any and all statements or summaries thereof, other than the statements included in the Complaint itself, made about [Petitioner] by any individual who provided information or statements for use in the Complaint.

4. Any and all statements or summaries thereof, other than the statements included in the Complaint itself, about the events described in the Complaint by any alleged witnesses to the events described in the Complaint.

5. The names, titles, and agency or department affiliations of any persons employed by the United States who were involved in the investigation of the acts described in the Complaint or in the drafting of the Complaint.

6. Any and all information of whatever form, source, or nature in the possession, custody, or control of any agency or division of the United states [sic] that describe, reflect, or document [Petitioner's] movements around Iraq on (1) May 26, 2006 through June 1, 2006, and (2) September 27, 2006 through October 3, 2006. Such information includes but is not limited to records of [Petitioner's] passage through any U.S.-controlled checkpoints during the periods in question.

(Ex. Doc. 180-1 at 2-3; see also Ex. Doc. 191 at 1-2)

The Extradition Court granted Petitioner's motion to compel in part insofar as ordering the United States to produce exculpatory materials in its possession “whether or not those materials resulted from its ‘domestic criminal investigation' or other source, that would undercut or obliterate probable cause that [Petitioner] committed the crimes alleged in the [Extradition] Complaint.” (Ex. Doc. 191 at 4) The Extradition Court otherwise denied Petitioner's motion to compel (“MTC”), finding that materials requested in MTC Request No. 6 would be included in exculpatory materials; that materials requested in MTC Request No. 2 were inadmissible at an extradition hearing as they constitute impeachment evidence; and that Petitioner had not shown how the materials requested in MTC Request Nos. 3, 4, or 5 relate to a determination of probable cause or would produce admissible evidence. (Id. at 4-6)

c. Applicable Law

Where the extradition court denies a discovery request, the reviewing court considers whether the extradition court committed an abuse of discretion. Prasoprat, 421 F.3d at 1014; Emami, 834 F.2d at 1452; see also Quinn, 783 F.2d at 817 n.41.

Extradition proceedings are not a criminal trial. See, e.g., Matter of Extradition of Mainero, 990 F.Supp. 1208, 1218 (S.D. Cal. 1997) (collecting cases). The purpose of extradition proceedings is not to determine guilt or innocence, but instead is “confined to whether a prima facie case of guilt exists that is sufficient to make it proper to hold the extraditee for trial.” Emami, 834 F.2d at 1452. In other words, the purpose of the extradition proceedings is to “determine whether there exists probable cause that the fugitive committed the offense charged[.]” Kraiselburd, 786 F.2d at 1399. The Federal Rules of Criminal Procedure, including rules governing discovery, explicitly exclude extradition proceedings. See Fed. R. Crim. P. 1(a)(5). Rather, whether to allow discovery is within the discretion and inherent power of the magistrate judge overseeing the extradition proceedings, Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir. 1986), and such discretion is limited. Kraiselburd, 786 F.2d at 1399 (citing Jhirad v. Ferrandina, 377 F.Supp. 34, 37 (S.D.N.Y. 1974)). In exercising this limited discretion, magistrate judges overseeing extradition proceedings “should consider that extradition proceedings are not to be converted into a dress rehearsal for trial and whether the resolution of the contested issue would be appreciably advanced by the requested discovery.” Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988) (internal citations omitted).

An extradition court generally may admit evidence that explains the government's evidence but may not introduce evidence that contradicts or contests the credibility of the government's evidence. See Santos, 830 F.3d at 1002-04. Admissible explanatory evidence may “explain away the requesting government's evidence of probable cause.” Barapind, 400 F.3d at 749. Evidence that does not guide a determination of probable cause, or requires the weighing of credibility or conflicting evidence, is non-admissible contradictory evidence. Id. at 749-50; Santos, 830 F.3d at 992-93. Moreover, a fugitive may not introduce impeachment evidence. Id. at 993. Such contradictory evidence would require the type of assessment that occurs at a trial, which exceeds the limited role and purpose of an extradition court. See id.; Barapind, 400 F.3d at 749-50.

d. Discussion

The Extradition Court did not abuse its discretion in denying Petitioner's motion to compel materials requested in MTC Request No. 2, which regarded materials reflecting any benefit conferred upon or promised to any person making a statement or otherwise providing information. See Man-Seok Choe v. Torres, 525 F.3d 733, 740 (9th Cir. 2008) (no error where extradition court denied discovery as to witness' credibility because such evidence was not admissible). Impeachment evidence, such as the materials sought by Petitioner in MTC Request No. 2, is inadmissible in extradition proceedings. Santos, 830 F.3d at 993.

As for MTC Request Nos. 3, 4, and 5, the Extradition Court found that Petitioner had not shown “how the information would relate to a probable cause determination or be admissible in an extradition hearing.” (Ex. Doc. 191 at 5) Further, the Extradition Court ordered that the United States produce to Petitioner exculpatory materials in its possession “whether or not those materials resulted from its ‘domestic criminal investigation' or other source, that would undercut or obliterate probable cause that [Petitioner] committed the crimes alleged in the [Extradition] Complaint.” (Id. at 4) Petitioner did not show that the broad and general requests for statements made about him or for identification of United States employees potentially involved in the investigation of drafting of the Extradition Complaint would have explained away probable cause, and the Extradition Court did not abuse its discretion declining to order these additional materials requested by Petitioner. See Prasoprat, 421 F.3d at 1015-16 (no error to deny discovery where information sought was not relevant to extradition court's role); In re Extradition of Handanovic, 826 F.Supp.2d 1237, 1240-41 (D. Or. 2011) (no error in denying discovery where there was “no evidence that United States has conducted its own independent investigation” into the offenses or “uncovered any exculpatory information”); Oen Yin-Choy, 858 F.2d at 1407 (no error where petitioner “made no showing that the requested discovery would appreciably advance his negation or explanation of the government's showing of probable cause”).

In sum, the Extradition Court did not abuse its discretion in its ruling on Petitioner's motion to compel. Accordingly, Petitioner's due process rights were not violated, and Petitioner's Claim 2 fails.

3. Claim 3

a. Parties' Arguments

In Claim 3 of the Petition, Petitioner argues that the Extradition Court violated his Fifth Amendment due process right by granting the government's motion to exclude certain opinions of Petitioner's expert witness, Professor Haider Ala Hamoudi, regarding the Iraqi criminal justice system. (Doc. 1 at 29-30) Petitioner urges that the rule of non-inquiry should be superseded by the fact that the Iraqi criminal justice system is “antipathetic to a federal court's sense of decency” and that extradition would violate Petitioner's constitutional and statutory rights. (Id.) (quoting Mainero v. Gregg, 164 F.3d 1199, 1210 (9th Cir. 1999)). Petitioner asserts that the Extradition Court “should have considered Professor Hamoudi's opinion at least on the status of the Iraqi criminal justice system.” (Doc. 1 at 30)

Respondents argue that the Extradition Court did not err in excluding some of Professor Hamoudi's opinions pursuant to the rule of non-inquiry. (Doc. 26 at 62-63) Under the rule of non-inquiry, Respondents assert that United States courts do not analyze the criminal justice system of a country requesting extradition, instead leaving such analysis to the Secretary of State. (Id. at 62) Accordingly, because consideration of Petitioner's treatment in Iraq are left to the Secretary of State Respondents argue that the Extradition Court properly excluded Professor Hamoudi's opinions insofar as Professor Hamoudi opined on matters only pertinent to the Secretary of State's determination. (Id. at 62-63) Further, Respondents assert that this Court should not apply a humanitarian exception to the rule of non-inquiry and, thus, should not consider Petitioner's potential treatment in Iraq, as no court in the Ninth Circuit has recognized such an exception. (Id. at 64) In addition, Respondents assert that Petitioner failed to develop any argument that the Extradition Court should have considered the inhumane argument. (Id. at 64-65)

In reply regarding Claim 3 (Doc. 32 at 13-14), Petitioner acknowledges that a humanitarian exception to the rule of non-inquiry has never been applied, but points out that Petitioner is only aware of two Iraqi extradition requests in the last several years (Id. at 13). Petitioner also asserts that “the reason why the Relator could not develop a record disclosing” “the inhumane nature of Iraq's judicial system is that the Extradition Court prevented him from doing so.” (Id.)

b. Extradition Court Proceedings

In support of Petitioner's extradition memorandum (Ex. Doc. 200), Petitioner submitted an expert report by Professor Hamoudi which included opinions: that the Iraqi extradition request contained procedural defects, such as a lack of a charged crime, improper jurisdictional transfers in Iraq, an inapplicable death penalty provision, and an inability to extradite the parties' own citizens; that the crimes alleged in the complaint were political offenses; and that the Iraqi criminal justice system was “antiquated” and would not provide Petitioner fair process. (Ex. Doc. 200-3 at 2-43)

In advance of the extradition hearing, the United States filed a motion in limine to exclude Petitioner's expert opinion evidence pertaining to: (1) the status of the Iraqi criminal justice system; (2) the availability of the death penalty in Iraq; (3) whether Iraq would extradite its own citizens to the United States; and (4) procedural defects in the Iraqi documents submitted in support of the Extradition Complaint. (Ex. Doc. 211)

The Extradition Court did not exclude Professor Hamoudi's report in whole, but instead granted in part the United States' motion in limine regarding Professor Hamoudi's report and opinions insofar as ruling that the Extradition Court would not consider Section IV(C) of Professor Hamoudi's report (regarding deficits of justice in the Iraqi criminal justice system) and would consider only those portions of Section IV(A) of Professor Hamoudi's report (regarding procedural defects) which discuss whether Petitioner has been “charged with” a crime covered by the extradition treaty. (Ex. Doc. 238 at 5)

c. Applicable Law

The long-standing rule of non-inquiry cautions United States courts “that it is the role of the Secretary of State, not the courts, to determine whether extradition should be denied on humanitarian grounds or on account of the treatment that the fugitive is likely to receive upon his return to the requesting state.” Prasoprat, 421 F.3d at 1016 (citing Blaxland v. Commonwealth Director of Public Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003)). This rule stems from the recognition that the Secretary of State retains discretion whether or not to extradite an individual and exercises such discretion based on foreign policy and considerations specific to each fugitive. Id. In extradition proceedings, “the need for flexibility in the exercise of Executive discretion is heightened” due to extradition “necessarily implicat[ing] the foreign policy interests of the United States.” Emami, 834 F.2d at 1454. As a corollary to the rule of non-inquiry, United States courts do not examine the penal system of the country requesting extradition, instead leaving such examination to the Secretary of State. See Blaxland, 323 F.3d at 1208 (quoting Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997)); Prasoprat, 421 F.3d at 1016-17 (discussing different roles of Secretary of State and the judiciary as to foreign policy concerns).

Further, a court overseeing extradition proceedings has discretion over the admission of evidence offered by the fugitive. Hooker, 573 F.2d at 1369; see also Santos, 830 F.3d at 1007. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply in extradition hearings. Santos, 830 F.3d at 992; Then v. Melendez, 92 F.3d 851, 855 (9th Cir. 1996); Fed. R. Crim. P. 1(a)(5)(A).

d. Discussion

Among other topics, Professor Hamoudi's report addressed the Iraqi penal system through an analysis of the Iraqi criminal justice system, the availability of the death penalty in Iraq, Iraq's likelihood of extraditing its own citizens to the United States under the Extradition Treaty, and various procedural defects in the Iraqi papers submitted in support of the Extradition Complaint. (Ex. Doc. 200-3 at 22-25) Because the Extradition Court's role did not encompass a review of the Iraqi penal system and to do so would have infringed on the role of the Secretary of State, the Extradition Court could properly exclude portions of Professor Hamoudi's report pursuant to the rule of non-inquiry. Because the Extradition Court need not consider evidence that is properly reserved for the Secretary of State's exercise of discretion, the Extradition Court did not deprive Petitioner of any due process right. Vo, 447 F.3d at 1247 (citing Lopez-Smith, 121 F.3d at 1326).²⁰

20 Moreover, it is not an abuse of discretion in extradition proceedings to deny discovery regarding the use of the death penalty in the requesting country. See Prasoprat, 421 F.3d at 1014-16. As the Ninth Circuit determined in Prasoprat, such evidence “would not be relevant to the magistrate judge's decision regarding whether to certify [the petitioner] as extraditable.” Id. at 1014-15. An extradition court's limited role is only to determine whether an offense is extraditable and whether probable cause exists that a fugitive committed the charged offenses. See Kraiselburd, 786 F.2d at 1399.

Citing Mainero v. Gregg, 164 F.3d at 1199, Petitioner argues that this Court should apply an exception to the rule of non-inquiry due to the “highly questionable practices and procedures” of the Iraqi criminal justice system. (Doc. 1 at 29-30) However, Petitioner takes Mainero out of context. In Mainero, the Ninth Circuit acknowledged that the Second Circuit had “suggested the possibility of a humanitarian exception in Gallina v. Fraser, 278 F.2d 77, 78 (2d Cir. 1960), in ‘situations where the relator, upon extradition, would be subject to procedures or punishment so antipathetic to a federal court's sense of decency as to require reexamination of [the general principle upholding extradition].'” 164 F.3d at 1210. The Ninth Circuit recognized that it had repeated the Second Circuit's “caveat” but nevertheless stated that it had “never relied on it to create a humanitarian exception to extradition.” Id. Ultimately, the Ninth Circuit declined to apply a humanitarian exception in Mainero, citing the “scant authority” for doing so. Id.

Thus, Mainero does not support Petitioner's argument that this Court could and should have applied a humanitarian exception, as no court has done so and the Ninth Circuit has explicitly declined to recognize or apply such an exception. Prasoprat, 421 F.3d at 1016-17 (finding no discretion to apply a humanitarian exception as a bar to extradition); United States v. Harkness, 2022 WL 3928372, at *9 (C.D. Cal. Aug. 31, 2022) (“[I]n in the more than sixty years since Gallina, no court has applied its dicta to create a humanitarian exception.”).

Accordingly, the Extradition Court did not violate Petitioner's due process rights by excluding the portions of Professor Hamoudi's report that addressed the Iraqi penal system or otherwise opined on issues reserved for the Secretary of State's exercise of discretion. Petitioner's Claim 3 fails.

4. Claim 4

a. Parties' Arguments

In Claim 4, Petitioner argues that the Extradition Court violated Petitioner's Fifth Amendment due process rights by barring Petitioner from impeaching the United States' expert witness at the extradition hearing. (Doc. 1 at 30) The Extradition Court relied on Santos v. Thomas, 830 F.3d 987 (9th Cir. 2016), in ruling that cross-examination and impeachment of the United States' expert witness was precluded, but Petitioner argues that Santos and its predecessor, Charlton v. Kelly, 229 U.S. 447 (1913), do not hold “that crossexamination of a government witness in extradition proceedings is prohibited.” (Id.)

Respondents assert that Petitioner had no right to cross-examination or impeachment of the United States' expert witness during the extradition hearing and that the Extradition Court properly exercised its discretion to deny Petitioner's request. (Doc. 26 at 63-64) Accordingly, Respondents argue that Petitioner could not be denied due process by the Extradition Court's ruling. (Id.)

In reply, Petitioner emphasizes that “Santos incorporates Charlton v. Kelly, 229 U.S. 447, 461 (1913), where the Supreme Court also stated that ‘There is not and cannot well be any uniform rule determining how far an examining magistrate should hear the witnesses produced by an accused person.'” (Doc. 32 at 14)²¹

21 Regarding Claim 4, Petitioner's reply also states that Petitioner's expert Professor “Hamoudi's testimony would not have gone to impeachment” but “would have addressed the abusive nature of the Iraqi judicial system” as “addressed further” “in Claim 8.” (Doc. 32 at 14). As set forth, infra, this assertion about Claim 4 is not supported by the record, and it appears that Petitioner may have meant this assertion in support of Claim 3. The assertion does not change the analysis of Claim 3, supra.

b. Extradition Court Proceedings

At the extradition hearing on July 15, 2021, the Extradition Court disallowed impeachment and cross-examination of both the United States' and Petitioner's only live witnesses, their expert witnesses. (Ex. Doc. 259; Ex. Doc. 273 at 11-13) Although both the United States and Petitioner's counsel challenged this ruling, the Extradition Court found that the case law was clear on this point:

MR. ALLISON²²: If that's Your Honor's ruling, generally the government is okay with that, Your Honor. If the -- Each party has exchanged reports from these witnesses, and we've been able to argue the reports in our briefing.

If a witness goes well beyond their report, is there any room to discuss -- And if the answer's no, that's fine. We just -- You know, if a witness were to get up and go well beyond the paragraph in their report, we haven't really had a chance to discuss that in briefing, but -

THE COURT: Well, we've had motions in limine -

MR. ALLISON: Correct.

THE COURT: -- on the reports and the expert reports and the declarations. So I'm not precluding you from argument. But the case law is pretty clear on the nature of this type of hearing. It is not a mini trial. And so you can make whatever argument, probably sourced from your own expert, in rebuttal, but I'm not going to have you or Ms. Johnson question each other's expert witnesses.

MR. ALLISON: Okay.

THE COURT: Ms. Johnson.

MS. JOHNSON²³: Your Honor, we would object to being deprived of an opportunity to cross-examine expert witnesses. My understanding regarding the case law about impeachment materials is that the Court has ruled that we are not allowed to introduce extrinsic evidence to challenge fact witnesses, contradictory evidence of fact witnesses.

I am unfamiliar with any law that says we cannot introduce evidence to contradict expert witnesses.

And we would ask for an opportunity to question Professor Whiteside, whose report was submitted after our expert's report, and we did not submit a reply report, nor was there an opportunity in the schedule to do so.

THE COURT: It's Santos, 830 F.3d at 993 that's pretty clear that the defense may not impeach government witnesses.

I have no problem with you making whatever arguments you wish to make in -- that dispute what the government witnesses say. But direct live crossexamination is not going to occur. And that is the Court's ruling.

(Ex. Doc. 273 at 12-13)

22 Counsel for the United States during Petitioner's extradition hearing. (Ex. Doc. 273 at 1)

23 Counsel for Petitioner during the extradition hearing. (Id.)

At a later point during the extradition hearing, Petitioner's counsel also asserted that Petitioner had “numerous prior statements by Professor Whiteside not just from 2015, as recently as this year” reflecting Professor Whiteside being “very well established on the record in writing and in speaking about the indigenous nature of Al Qaeda in Iraq.” (Ex. Doc. 273 at 185) Petitioner's counsel expressly objected to lack of opportunity to impeach Dr. Whiteside and objected “to a factual finding being made without cross-examination.” (Id.) Further, Petitioner's counsel stated that she was “sure that the government has many statements that they wanted to ask Professor Hamoudi about as well.” (Id.) The Extradition Court responded:

Well, we refer back to Santos, and both parties were allowed to present their experts and to place their expert's report in the most persuasive and -- context that they could. And that's where we drew the line. So your objection is noted.

(Id.)

Following the extradition hearing, Petitioner moved for reconsideration of the Extradition Court's ruling barring the parties from impeaching each other's expert witness at the extradition hearing. (Ex. Doc. 266; see also Ex. Doc. 273 at 11-13) In the motion for reconsideration, Petitioner argued that the Extradition Court read the Santos decision too broadly in applying it to expert witness testimony, particularly expert testimony regarding the political offense exception. (Doc. 266) Petitioner's counsel argued that she had intended to cross-examine and impeach Professor Whiteside with five video excerpts, including four excerpts from Professor Whiteside's comments at a panel discussion at the Stimson Center and one excerpt from Professor Whiteside's comments on a video podcast from the International Institute for Counter-Terrorism. (Ex. Doc. 266 at 2-4) Petitioner recounted that at the extradition hearing:

The [Extradition] Court permitted Petitioner's counsel to play two clips from the Stimson Center panel, but only for the purpose of eliciting Professor Hamoudi's agreement with Professor Whiteside's statements. When the [United States] subsequently elicited Professor Whiteside's testimony that he had changed his mind since making the statements expressed in these clips, the Court's ruling barred [Petitioner]'s counsel from cross-examining him as to this or any other matter. Professor Hamoudi likewise testified without undergoing any cross-examination by the [United States].

(Id. at 3-4) Indeed, at the extradition hearing, Professor Hamoudi testified regarding his opinions on Professor Whiteside's statements in the two video clips, including statements regarding the composition of AQI, the leadership of AQI, and the connection between AQI and sectarian tensions within strains of Islam. (Ex. Doc. 273 at 99-106)

In denying Petitioner's motion for reconsideration, the Extradition Court wrote that its “ruling at the hearing was narrow; neither party was permitted to impeach the other's witness.” (Doc. 272 at 3)²⁴ Further, the Extradition Court explained that it did not rule that [Petitioner]'s expert could not testify or be directly examined by Petitioner, and in fact the testimony by [Petitioner]'s expert was admitted.” (Id.)

24 When counsel for the United States read excerpts from a book that Professor Hamoudi cited in his report, the Extradition Court interrupted due to concern that the United States intended to impeach Professor Hamoudi with the excerpts. (Id. at 166-70)

c. Applicable Law

A court overseeing extradition proceedings has discretion over the admission of evidence offered by the fugitive. Hooker, 573 F.2d at 1369; see also Santos, 830 F.3d at 1007. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply in extradition hearings. Santos, 830 F.3d at 992; Then v. Melendez, 92 F.3d 851, 855 (9th Cir. 1996); Fed. R. Crim. P. 1(a)(5)(A). The fugitive does not have a right to crossexamine witnesses during extradition proceedings. Oen Yin-Choy, 858 F.2d at 1407 (citing Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984), and Charlton, 229 U.S. at 462). Moreover, a fugitive “may not impeach government witnesses.” Santos, 830 F.3d at 993 (citing Charlton, 229 U.S. at 461).

d. Discussion

Petitioner argues that the Extradition Court improperly relied on Santos and by extension Charlton because the Supreme Court in Charlton did not hold that crossexamination of government expert witnesses is prohibited. (Doc. 1 at 30) Petitioner states that the court in Charlton found that “‘[t]here is not and cannot well be any uniform rule determining how far an examining magistrate should hear the witnesses produced by an accused person.'” (Id.) (quoting Charlton, 229 U.S. at 461). The cited quote from Charlton refers to witnesses produced by the fugitive, not the government, and does not have a bearing on Petitioner's argument that the Extradition Court should have permitted crossexamination of the United States' expert witness. Moreover, in Charlton, the Supreme Court acknowledged that “[t]o have witnesses produced to contradict the testimony for the prosecution is obviously a very different thing from hearing witnesses for the purpose of explaining matters referred to by the witnesses for the government” and ultimately accepted the view that “‘cross-examination of the witnesses for the [United States] is certainly improper.'” 229 U.S. at 461-62 (quoting United States v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16, 685). While Santos is written broadly, it does not specifically exclude or preclude expert witnesses in its holding. Santos, 830 F.3d at 987.

Precedent is clear that Petitioner did not have a right to cross examine the United States' extradition hearing witnesses and that the presiding magistrate judge has discretion regarding the extent of witness testimony in an extradition hearing, including precluding or limiting impeachment. Because a right to cross examination and/or impeachment of United States' witnesses in an extradition hearing does not exist, the Extradition Court did not abuse its discretion and Petitioner was not denied due process by the Extradition Court's prohibition against cross examination and impeachment of the United States' sole live witness, an expert witness. See Oen Yin-Choy, 858 F.2d at 1407 (petitioner not denied due process by prohibition against cross-examination). Even if preclusion of cross examination and impeachment of the United States' expert witness regarding the political offense exception is too broad of a reading of Santos as Petitioner argues, Petitioner did not suffer a due process violation in how the Extradition Court conducted the proceedings. In addition to the report and testimony of Petitioner's expert about the matters pertinent to the political offense exception, the Extradition Court allowed Petitioner opportunity to present video clips of the United States' expert witness in Petitioner's presentation of Petitioner's expert witness testimony. Therefore, Petitioner's claim 4 fails.

5. Claim 5

a. Parties' Arguments

In Claim 5 of the Petition, Petitioner argues that the accusations against him regard political offenses and therefore are non-extraditable under Article III of the Extradition Treaty. (Doc. 1 at 31) Petitioner argues that he meets the political offense exception because he is a native Iraqi who was allegedly involved in an insurgent group with the intent of overthrowing the Iraqi government. (Id. at 44) Petitioner asserts that Iraq was experiencing an insurgency in 2006 and that the insurgency intended to overthrow the American-backed Iraqi government. (Id. at 39-40) As for Petitioner's alleged membership in al-Qaeda of Iraq (“AQI”), Petitioner asserts that AQI was involved with the insurgency; that AQI attacked police, just as other Sunni insurgents did; that the charged offenses were controlled by a hierarchy in AQI; that Iraqi authorities assigned the charged offenses to a court specializing in terrorist acts; and that Iraqi authorities considered Petitioner to be a member of a group destabilizing Iraq. (Id. at 40-42) Petitioner argues that both his expert and the United States' expert agreed that AQI was involved with the insurgency and that AQI attacked police officers in support of the insurgency. (Id. at 43) Further, Petitioner argues that the Extradition Court erred in determining that the charged offenses were not political because al-Qaeda was international and had non-Iraqi members. (Id. at 44-49) Instead, Petitioner argues that the purpose of AQI-to overthrow the Iraqi government in support of the insurgency's goal-supports the conclusion that the charged offenses qualify for the political offense exception. (Id. at 47-48) In the Petition, Petitioner describes cooperator testimony that an AQI operative arranged that the group would kill Officer Mohammad and paid members of the group Iraqi currency upon completion of the murder, albeit Petitioner asserts that the payment was approximately $35 American dollars. (Id. at 32-33; see also Id. at 41, line 14)

Respondents argue that the Extradition Court's rejection of Petitioner's argument in its Order Certifying Extradition was correct, and Respondents otherwise argue that the political offense exception does not prevent Petitioner's extradition. (Doc. 26 at 24-35) Respondents argue that the alleged crimes were committed in furtherance of international terrorism, not a domestic, “indigenous uprising” of a political nature. (Id.) Citing the two-part incidence test for political offenses, Respondents argue that the Extradition Court correctly found that Petitioner could not meet either prong of the incidence test. (Id. at 2535) First, Respondents argue that the United States' expert witness opinions are reliable and support the Extradition Court's finding that AQI did not act in furtherance of a domestic, indigenous insurgency in Iraq. (Id. at 26-31) Second, Respondents argue that the evidence before the Extradition Court demonstrates that the offenses at issue were not incidental to or in furtherance of a domestic insurgency in Iraq. (Id. at 31-35) To the contrary, Respondents argue that AQI did not share the objectives of a contemporaneous domestic insurgency in Iraq, indigenous groups did not target local police officers, and Petitioner was not charged under a terrorism statute. (Id.) Respondents also assert that the evidence presented in the Extradition Court reflects that Petitioner and the other persons committed both of the murders on behalf of AQI and that they did so for personal monetary benefit, negating the political offense exception. (Id. at 34-35)

In his reply, Petitioner states that “[t]here is no doubt that AQI was responsible for the murders here[.]” (Doc. 32 at 15) Petitioner summarizes that “an AQI operative directed the attacks and arranged for compensation in the course of pursuing the political objective of overthrowing the Iraqi government.” (Id. at 17) Petitioner reasserts his Petition arguments in his reply, including that AQI supported the indigenous insurrection in Iraq even though AQI contained non-Iraqi members and leaders and even though AQI did not start the indigenous uprising in Iraq. (Id. at 14-17)

b. Expert Opinions

The parties each submitted reports of their experts, Professor Whiteside for the United States and Professor Hamoudi for Petitioner, regarding matters pertinent to the political offense exception. (Ex. Docs. 199-2, 200-3) Further, both experts testified at the hearing before the Extradition Court regarding matters pertinent to the political offense exception. (Ex. Doc. 273 at 91-106, 161-165)

c. Applicable Law

Article III of the Extradition Treaty bars the extradition of an individual for a political offense and provides in relevant part:

[t]he provisions of this Treaty shall not import claim of extradition for crimes of a political character nor for acts connected with such crimes; and no person surrendered by or to either of the High Contracting Parties in virtue of this Treaty shall be tried or punished for a political crime.

The burden initially lies on Petitioner to prove the elements of the political offense exception, then shifts to the United States if Petitioner establishes that the essential elements are met. See United States v. Pitawanakwat, 120 F.Supp.2d 921, 928 (D. Or. 2000).

The Ninth Circuit recognizes two categories of political offenses: pure and relative. Quinn, 783 F.2d at 793. Pure political offenses, such as treason, sedition, and espionage, “are acts aimed directly at the government,” “have none of the elements of ordinary crimes,” and “do not violate the private rights of individuals[.]” Id. Relative political offenses “include otherwise common crimes committed in connection with a political act, [] or common crimes committed for political motives or in a political context[.]” Id. at 794 (citations omitted). Because murder is not a pure political offense, murder may be a relative political offense if the offense is related to an uprising. See id.; Barapind, 360 F.3d at 1061.²⁵

25 Petitioner does not argue otherwise. (Docs. 1, 32)

To determine if a crime falls under the relative political offense exception, courts apply a two-prong “incidence test.” Vo, 447 F.3d at 1241. For an offense to qualify as a relative political offense under the incidence test, a court must find “(1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense, and (2) a charged offense that is ‘incidental to' ‘in the course of,' or ‘in furtherance of' the uprising[.]” Quinn, 783 F.2d at 797 (internal citations omitted). The political offense exception is “ideologically neutral” and takes into account “the fact that insurgents are seeking to change their governments [...] not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that task.” Quinn, 783 F.2d at 804-05.

Under the first prong of the incidence test, a qualifying uprising should have certain characteristics: “a ‘certain level of violence'” must exist; the charged offense must occur in the geographic area where the individuals involved in the uprising live; and “the individual charged with the offense must be ‘seeking to change the form of government under which [he] live[s].'” Vo, 447 F.3d at 1241 (quoting Quinn, 783 F.2d at 807, 813-14, 818). Because an uprising exists where there is “a revolt by indigenous people against their own government or an occupying power[,]” “[a]cts of international terrorism do not meet the incidence test and are thus not covered by the political offense exception.” Quinn, 783 F.2d at 807, 817. Under the second prong of the test, a fugitive has the burden to show a nexus between the charged offenses and the uprising. See Vo, 447 F.3d at 1242. “A court may not rely on a fugitive's mere assurance that a crime had some political purpose.” Barapind v. Enomoto, 400 F.3d 744, 751 (9th Cir. 2005). “Rather, the fugitive has the burden of showing a factual nexus between the crime and the political goal.” Id.

Further, evidence of a crime committed for personal monetary gain, even if committed during an uprising, negates the applicability of the political-offense exception. Quinn, 783 F.2d at 810; Ornelas v. Ruiz, 161 U.S. 502 (1896). In Quinn, the Ninth Circuit emphasized, the political-offense exception “is not designed to protect mercenaries or others acting for nonpolitical motives.” Id. In Ornelas, the petitioners alleged that they raided a town in furtherance of a Mexican political revolt, yet the petitioners returned to the United States with stolen property following the commission of the charged offenses. 161 U.S. at 510-11. Finding that the petitioners did act in furtherance of the Mexican political revolution, the Supreme Court determined that the offenses charged against the petitioners were not political in nature. Id. at 511-12; see also In re Doherty, 599 F.Supp. 270, 277 n.7 (S.D.N.Y. 1984) (an otherwise political act can be deprived of its political character if committed for “purely personal reasons”).

The question of whether an offense qualifies for the political offense exception “is reviewable on habeas corpus as part of the question of whether the offense charged is within the treaty.” Quinn, 783 F.2d at 791. Generally, whether an offense qualifies under the political offense exception is a mixed question of law and fact and is reviewed de novo. Id. at 791; Vo, 447 F.3d at 1240. Nevertheless, “if ‘the determination is essentially factual....it is reviewed under the clearly erroneous standard.'” Vo, 447 F.3d at 1240 (quoting Quinn, 783 F.2d at 791) (cleaned up). Accordingly, on habeas review, the district court “must review the magistrate judge's purely factual findings underlying the application of the political offense exception under the clearly erroneous standard[.]” Quinn, 783 F.2d at 791.

d. Extradition Court's Findings

The Extradition Court identified the incidence test from Quinn and recognized that the incidence test is “ideologically neutral” and does not center around the reasons for the insurgency or the nature of the acts committed in furtherance of it. (Ex. Doc. 302 at 25) The Extradition Court reviewed and considered the expert witness opinions of both parties in its political offense exception analysis (Id. at 25-32)

Applying the incidence test, the Extradition Court “assume[d] that the murders were committed by individuals acting on behalf of AQI” because “no competent evidence suggest[ed] that any group other than AQI committed the murders.” (Id. at 28) The Extradition Court found that the parties agreed that in 2006 Iraq experienced a “violent Sunni insurgency” in opposition of the Iraqi government and the United States. (Id. at 29) However, the Extradition Court credited Professor Whiteside's report that characterized AQI as an “international and transnational terrorist group committing violence in multiple nations besides Iraq” that “often stood in violent opposition to other Sunni insurgent groups in Iraq.” (Id. at 29) In doing so, the Extradition Court found that:

the violent conflict towards the end of 2006 known as “the Awakening,” during which the “local grassroots movement” groups violently opposed AQI's attempt to dominate the domestic insurgency and impose AQI's goals, supports the conclusion that AQI was in opposition to indigenous Sunni groups, and not part of a domestic insurgency. See [ex.] doc. 199-2 at 1, 4, 10.

In illustrating the difference between AQI and indigenous groups, Whiteside identifies AQI's targeting of Iraqi police forces-the subject of the Complaint seeking Extradition-as one cause of the armed resistance Sunni militant groups conducted against AQI. For some Sunni tribes, jobs in the Iraqi police force were an important source of revenue and employment at a time of widespread unemployment. [Ex.] Doc. 199-2 at 11. AQI favored attacked on police officers for its goals; the indigenous Sunni insurgency did not, as “local Iraqi police had a negligible influence on insurgent activity and focused more on their roles as community arbiters of citizen behavior.” [Ex.] Doc. 199-2 at 12.

In discussing the armed resistance to AQI in 2006 and 2007, Whiteside summarizes how AQI differed from the domestic insurgency:

many felt that the group's [AQI's] killing of Iraqis that joined the government as soldiers and police, largely to earn a living, was an affront to the cultural tribal and societal norms of Anbar province and many other Sunni dominated areas. In many cases, these rival resistance members and tribal auxiliaries joined together to fight with the same U.S. and Iraqi government forces they were recently fighting against. This massive shift alone should speak to the bitter feelings that the extremists of AQI engendered among the very people they were trying to govern, or more accurately, coerce on their way to establishing a cross-boundary caliphate. It is a categorical error to paint AQI as just another Iraqi resistance group during this time period.

[Ex.] Doc. 199-2 at 13. This description-of rival resistance groups fighting against AQI, and with “the same U.S. and Iraqi government forces”- supports the inapplicability of the political offense exception to acts committed on behalf of AQI, an international and transnational terrorist group.

This Court finds AQI in 2006 was not part of an internal “uprising or other

violent political disturbance” within the meaning of the first prong of the political offense exception defined in Quinn. Here, the cooperator named [Petitioner] as Emir of the al-Qaeda organization ([ex.] doc. 3-4 at 7), and an eyewitness identified [Petitioner] as Emir of a group of militants in the Islamic State ([ex.] doc. 3-4 at 5). [Petitioner] acknowledges AQI was present in Iraq and conducted acts of international terrorism in Iraq. [Ex.] Docs. 200-3 at 34, ¶ 127; 273, Tr. 147-48. On the evidence presented, the Court finds that the murders were acts of international terrorism constituting “foreign intervention in internal struggles for self-determination.” Quinn, 783 F.3d at 806. As the Quinn Court stated repeatedly, international terrorism is not protected by the political offense exception. Id. at 805. “Acts of international terrorism do not meet the incidence test and are thus not covered by the political offense exception.” Id. at 817.

(Ex. Doc. 302 at 29-31) While Petitioner argued that the charged offenses were not international terrorism because Petitioner was a native of Iraq and did not travel into Iraq from another country, the Extradition Court declined to accept Petitioner's argument:

Quinn supports declining to apply the political offense exception under these circumstances in which an international terrorist group, with its own foreign command structure in place in Iraq, employed an Iraqi national to carry out its foreign intervention as it attempted to obliterate the government of Iraq as a sovereign entity and subsume the Iraqi nation within a caliphate. Exportation of violence is not protected by the political offense exception. See Quinn, 783 at 813. Indeed, the Court in Quinn anticipated the scenario of violence exported by foreign entities when it noted the political offense exception does not bar extradition of an international terrorist who “has interfered with the rights of others to exist peacefully under their chosen form of government.” Quinn, 783 F.2d at 806. [Petitioner's] acts of murder, on behalf of AQI and in service of destroying the Iraqi government from without as opposed to supporting a domestic political struggle from within, fit squarely within the category of foreign intervention in internal struggles that Quinn excluded from the protection of the political offense exception.

(Ex. Doc. 302 at 31-32)

In addition, the Extradition Court determined that Petitioner did not meet the second prong of the incidence test:

in light of the evidence that, in contrast to AQI, indigenous insurgents did not target police officers, the murders of Lieutenant Hussein and Officer Mohammed were not in furtherance of, or incidental to, any domestic uprising. In Barapind, the Court noted that the [Petitioner] “has the burden of showing a factual nexus between the crime and the political goal.” 400 F.3d at 751. Here, in relying on the “nature of the act” of murdering police officers, [Petitioner] has not met his burden of showing the acts were “causally or ideologically related” to an indigenous political uprising. Id. at 752 (quoting Quinn, 783 F.2d at 809).

(Ex. Doc. 302 at 31)

a. Discussion

Under the political offense exception, a crime cannot be political in nature if it is committed for personal reasons. Quinn, 783 F.2d at 810 (internal citation omitted). As the Quinn court emphasized, the political offense exception “is not designed to protect mercenaries or others acting for nonpolitical motives.” Id. The evidence that Petitioner and his criminal associates were paid to commit at least one of the charged murders is sufficient to preclude application of the political offense exception.²⁶

26 The parties addressed this personal gain/compensation issue in their extradition briefs. (Ex. Doc. 199 at 27-28 (United States); Ex. Doc. 200 at 14-15 (Petitioner)) The Extradition Court did not reach this issue in finding that the political offense exception did not apply. (Ex. Doc. 302 at 25-32)

In any event, after careful consideration of the record in the Extradition Court proceedings and the arguments of the parties in these habeas proceedings, Respondents are correct that the Extradition Court did not abuse its discretion in its factual determinations and that the Extradition Court properly concluded that Petitioner failed to satisfy either prong of Quinn's incidence test. The Extradition Court's reasoning and conclusions are persuasive that Petitioner has not met his burden to show that the political offense exception prevents certification of Petitioner's extradition. Thus, Claim 5 fails.

6. Claim 6

a. Parties' Arguments

In Claim 6, Petitioner argues that the United States did not present evidence establishing probable cause that Petitioner committed the offenses set forth in the Extradition Complaint. (Doc. 1 at 49-53) Petitioner argues that the cooperator and eyewitness statements which the Extradition Court relied on to find probable cause were inconsistent, contradictory, and unreliable. (Id.) Petitioner also argues that a witness to the murder of Officer Mohammad used a name other than Petitioner's. (Id. at 52)

Respondents argue that ample evidence supports the Extradition Court's finding of probable cause as to both murders. (Doc. 26 at 12-20) Respondents point out that the Extradition Court only needed to find “any competent evidence” that Petitioner committed the offenses set forth in the Extradition Complaint, as opposed to weighing the evidence and resolving factual disputes. (Id. at 13) In discussing the evidence before the Extradition Court, Respondents argue that any inconsistencies in the witness and cooperator statements do not undermine an overall finding of probable cause. (Id. at 13-20)

In reply, Petitioner reasserts his Petition arguments that the evidence does not support probable cause. (Doc. 32) Petitioner also asserts that four additional witness declarations Petitioner's legal team obtained through investigation in Iraq in late 2022 (Doc. 35) are pertinent to the issue of probable cause and should be considered on habeas review. (Doc. 32 at 2-9) Regarding the murder of Officer Mohammad, Petitioner argues that one of the investigative declarations in particular “goes to the heart of probable cause.” (Id. at 8)

b. Eyewitness and cooperator statements

As part of the extradition request, the Iraqi government submitted statements from one cooperator and three eyewitnesses implicating Petitioner in the murders of Lieutenant Hussein and Officer Mohammad. (Ex. Doc. 3 at 2-5; Ex. Doc. 3-1 at 75-76, 78-82, 85-86, 105-11 (unredacted); Ex. Doc. 3-3 at 75-76, 78-82, 85-86 (redacted); Ex. Doc. 3-4 at 5-11 (redacted)) The same cooperator provided statements regarding both murders. (Ex. Doc. 31 at 78-79, 81-82, 85-86, 107-11 (unredacted); Ex. Doc. 3-3 at 78-79, 81-82, 85-86 (redacted); Ex. Doc. 3-4 at 7-11 (redacted)) One individual provided an eyewitness statement regarding the murder of Lieutenant Hussein and two individuals provided eyewitness statements regarding the murder of Officer Mohammad. (Ex. Doc. 3-1 at 7376, 102-03, 105-06 (unredacted); Ex. Doc. 3-3 at 73-76; Ex. Doc. 3-4 at 2-3, 5-6 (redacted))

i. Murder of Lieutenant Hussein

A. Cooperator's Statements

On June 6, 2010, the cooperator provided a statement to the “Karkh Investigative Court, terrorism matters[.]” (Ex. Doc. 3-1 at 107 (unredacted); Ex. Doc. 3-4 at 7 (redacted)) The cooperator attested that he worked with Petitioner in AQI; that Petitioner was the “Emir” of their group; and that in 2006, Petitioner, the cooperator, and others met at Petitioner's carpentry store on Street 40 in Fallujah, Iraq, where they conspired to kill Lieutenant Hussein. (Id.) The cooperator testified that the group drove a white Prince car and carried both AK47s and a handgun. (Id.) The cooperator stated that he was asked to watch the road while Petitioner “stepped out of the car and fired shots at the victim using his 9mm hand gun and killed him.” (Id.)

Also on June 6, 2010, the cooperator provided a statement to the “Al-Fallujah Investigative Court.” (Ex. Doc. 3-1 at 110 (unredacted); Ex. Doc. 3-4 at 10 (redacted)) The cooperator again stated that Petitioner, the cooperator, and others met at Petitioner's wood shop on Street 40 and agreed to kill Lieutenant Hussein. (Id.) The cooperator stated that he did not participate in the incident, but that Petitioner later told the cooperator that Petitioner had “executed the operation using a 9mm hand gun that he was carrying[.]” (Id.) The cooperator again stated that Petitioner was the “Emir” of their group and testified that the group drove a white Daewoo Prince and used automatic weapons and guns. (Id.)

On June 6, 2010, accompanied by individuals from the Al-Fallujah Investigative Court, the cooperator participated in a walk-through of the location where Lieutenant Hussein was killed. (Ex. Doc. 3-1 at 85-86 (unredacted); Ex. Doc. 3-3 at 85-86 (redacted)) The cooperator stated that he was present when Petitioner and others agreed to kill Lieutenant Hussein at Petitioner's wood sales shop on Street 40. (Ex. Doc. 3-1 at 85 (unredacted); Ex. Doc. 3-3 at 85 (unredacted)) The cooperator “pointed with [redacted] hand to the location of the shop and indicated that [redacted] had learned That Ali Yousif, [redacted], [redacted] and [redacted] killed the victim 1^st Lieutenant Issam Hussein on Street 40 in Al-Fallujah and they used a white Daewoo Prince belonging to the defendant Ali Yousif and they used automatic weapons and pistols.” (Ex. Doc. 3-1 at 85-86 (unredacted); Ex. Doc. 3-3 at 85-86 (redacted))

The cooperator made two follow-up statements to the “Office of Counter Terrorism” on June 6, 2010, in which the cooperator testified that Petitioner and others killed Lieutenant Hussein near the store on Street 40. (Ex. Doc. 3-1 at 80, 109 (unredacted); Ex. Doc. 3-3 at 80; Ex. Doc. 3-4 at 9 (redacted)) In the follow up statements, the cooperator recounted that he was present when Petitioner and others agreed to kill Lieutenant Hussein, but the cooperator stated that he did not participate in the execution of the killing. (Id.)

B. Statement of Eyewitness 1

On November 1, 2009, a witness provided a statement to the “Investigative Court, Fallujah” that he was seated with Lieutenant Hussein²⁷ on Street 40 across from a wood shop when a black Daewoo Prince and another car with white stripes drove up. (Ex. Doc. 3-1 at 106 (unredacted); Ex. Doc. 3-4 at 6 (redacted)) The witness stated that six “masked militants” got out of the car; one put a gun to the witness' head. (Id.) Another man pointed a pistol at Lieutenant Hussein, but it misfired. (Id.) The witness testified that Petitioner was present, was unmasked and holding a gun, and shouted at the militants to leave Lieutenant Hussein. (Id.) Another masked man then shot and killed Lieutenant Hussein with an AK47. (Id.)

27 Referenced in the statement as 1^st Lieutenant Issam Ahmed.

On the same date, the witness provided a second statement to the “Office of Counterterrorism” and testified that he was sitting with Lieutenant Hussein when six masked and armed people got out of a black Prince car with white stripes, pointed a gun at the witness' head, and attempted to fire at Lieutenant Hussein with a handgun. (Ex. Doc. 3-1 at 105 (unredacted); Ex. Doc. 3-4 at 5 (redacted)) When the handgun did not fire, another armed person shot and killed Lieutenant Hussein with an AK47. (Id.) The witness testified that Petitioner was present and carrying a handgun and told the militants to leave Lieutenant Hussein. (Id.) The witness stated that Petitioner was a member and Emir of their group. (Id.) The second statement also includes a representation that “there is a confession disk about all the accomplices among them the criminal Ali Yousif[.]” (Id.)

ii. Murder of Officer Mohammad

A. Statement of Eyewitness 3 ²⁸

28 The Extradition Court refers to the witnesses of Officer Mohammad's murder as Eyewitnesses 2 and 3. (Ex. Doc. 302 at 11-12) For clarity, this Report and Recommendation similarly identifies these eyewitnesses.

In 2019, an eyewitness attested that he was present on Street 40 in Fallujah during Ramadan in 2006 and saw Officer Mohammad sitting with a group in front of a store. (Ex. Doc. 3-1 at 76 (unredacted); Ex. Doc. 3-3 at 76 (redacted)) This eyewitness saw a red Opel Omega car with four people inside, and the people in the car shot at Officer Mohammad and the group with him. (Id.) One person got out of the car and continued firing, and the first eyewitness testified that he recognized the person as Petitioner because Petitioner lived near the first eyewitness' house, worked as a carpenter in his store on Street 40, and “was well known in the area for conducting assassination operations on most members of the Police force.” (Id.) The statement reflects that the Iraqi court presented photos to the first eyewitness, who identified Petitioner. (Id.)

B. Statement of Eyewitness 2

On February 18, 2019, a different eyewitness attested that in 2006, he was standing near where an armed group shot at Officer Mohammad. (Ex. Doc. 3-1 at 75 (unredacted); Ex. Doc. 3-3 at 75 (redacted)) The second eyewitness' statement recounts that Petitioner was among those firing at Officer Mohammad and that he recognized Petitioner when Petitioner's “mask fell off his face[.]” (Id.)

C. Cooperator's Statements

On November 5, 2006, the cooperator provided statements to the “Office of important crimes” and the “Al-Fallujah Investigative Court.” (Ex. Doc. 3-1 at 78-79, 8182 (unredacted); Ex. Doc. 3-3 at 78-79, 81-82 (redacted)) The cooperator attested that he was asked to join a group, including Petitioner, that agreed to kill Officer Mohammad. (Ex. Doc. 3-1 at 81 (unredacted); Ex. Doc. 3-3 at 81 (redacted)) A surveillance team, including Petitioner, watched Officer Mohammad before assassinating him and drove to Street 40 in a “greyish” Opel Senator and a navy Opel. (Id.) The cooperator described that Petitioner “was surveilling the area, then we departed where shots were fired at him [Officer Mohammad] and he was killed with two other people[.]” (Id.) The cooperator's statement reflects that one member of the cooperator's group as well as the cooperator had a handgun, while others had AK47s. (Ex. Doc. 3-1 at 81-82 (unredacted); Ex. Doc. 3-3 at 81-82 (redacted)) The cooperator attested that the group received 50,000 Iraqi Dinars after the killing. (Ex. Doc. 3-1 at 81 (unredacted); Ex. Doc. 3-3 at 81 (redacted)) Further, the events occurred in the month of Ramadan. (Id.)

The cooperator's statement to the “Office of important crimes” also included that Petitioner was the leader of the group and drove a greyish Opel Senator to protect the navy Opel car that the cooperator drove and that “executed the job[.]” (Ex. Doc. 3-1 at 78 (unredacted); Ex. Doc. 3-3 at 78 (redacted)) The cooperator repeated that Officer Mohammad was near the stores on Street 40 and that he was killed along with two other individuals. (Id.) Additionally, the cooperator that Petitioner “searched the victim Khalid and took the hand gun that he was carrying[.]” (Id.) In this statement to the “Office of important crimes,” the cooperator referred to Petitioner as “Ali Yousif Al-Mahmadi.” (Id.) Also on November 5, 2006, the cooperator made a follow-up statement, in which the cooperator recounted that Petitioner told the group Officer Mohammad's location and that the cooperator was carrying a pistol in contrast to the others' “weapons.” (Ex. Doc. 3-1 at 79 (unredacted); Ex. Doc. 3-3 at 79 (unredacted))

On June 6, 2010, the Al-Fallujah Investigative Court conducted a walk-through with the cooperator of the scene of the murder of Officer Mohammad.²⁹ (Ex. Doc. 3-1 at 85-86 (unredacted); Ex. Doc. 3-3 at 85-86 (redacted)) The cooperator was taken to Street 40 and pointed at the stores on the street. (Id.) The cooperator stated that he and others were in a greyish Opel Omega, while Petitioner and others were in an Opel Vectra. (Id.) The cooperator stated that Petitioner had a pistol and the others had automatic weapons, with which they shot and killed Officer Mohammad. (Id.)

29 The cooperator's walk-through for Officer Mohammad's murder appears to have occurred at the same time as the walk-through for the murder of Lieutenant Hussein, discussed above.

Also on June 6, 2010, the cooperator provided two statements to the Office of Counterterrorism. (Ex. Doc. 3-1 at 107-09 (unredacted); Ex. Doc. 3-4 at 7-9 (redacted)) In the first statement, the cooperator described that in 2006, his AQI group agreed to kill Officer Mohammad and used two cars, a walnut Opel Vectra that Petitioner rode in, and a greyish Opel Omega that the cooperator was in. (Ex. Doc. 3-1 at 107-08 (unredacted); Ex. Doc. 3-4 at 7-8 (redacted)) The cooperator stated that the group, including the cooperator and Petitioner, carried AK47s and 9 mm handguns. (Id.) When they drove past Officer Mohammad on Street 40, they turned around, and Petitioner stepped out with a handgun, while others stepped out with AK47s. (Ex. Doc. 3-1 at 108 (unredacted); Ex. Doc. 3-4 at 8 (redacted)) Petitioner and others shot and killed Officer Mohammad and two other individuals before the group fled. (Id.) The cooperator stated that he shot rounds over the heads of nearby individuals to disperse them. (Id.) In his second, follow-up statement, the cooperator recounted that in 2006 he was working with an AQI group that included Petitioner and others. (Ex. Doc. 3-1 at 109 (unredacted); Ex. Doc. 3-4 at 9 (redacted)) The group drove two cars, a walnut Opel Vectra and an Opel Omega, to Street 40 and saw Officer Mohammad standing near the stores with two civilians. (Id.) The group carried AK47s, and Petitioner had a 9mm pistol. (Id.) The cooperator also attested that the group took Officer Mohammad's handgun before fleeing. (Id.)

c. Extradition Court findings

In its Order Certifying Extradition, the Extradition Court addressed whether or not the cooperator and eyewitness statements submitted with the extradition request established probable cause for each of the murders of Lieutenant Hussein and Officer Mohammad in the Extradition Complaint. (Ex. Doc. 302 at 4-15) In doing so, the Extradition Court determined that under Article 406/1/A of the Iraqi Penal Code, an individual could be guilty of premeditated killing as either a principal or accessory. (Id. at 10-11; Ex. Doc. 3-3 at 26 (redacted); see also Ex. Doc. 3-1 at 26 (unredacted)) The Extradition Court found that an accessory included an individual “who conspires with others to commit an offense and that offense is committed on the basis of such conspiracy[,]” whereas an individual could be considered a principal if he is “present during the commission of that offense or any act contributing to that offense.” (Id.) (internal quotations omitted)

1. Murder of Lieutenant Hussein

In its review of the evidence presented, the Extradition Court found that both the cooperator's and Eyewitness 1's statements placed Petitioner at the scene of Lieutenant Hussein's murder with a handgun; that the cooperator asserted that Petitioner told the cooperator that Petitioner “executed the operation” with a handgun; and that the cooperator reported that Petitioner, the cooperator, and others allegedly planned Lieutenant Hussein's murder at Petitioner's shop. (Ex. Doc. 302 at 7-8) Acknowledging the inconsistency in the cooperator's statements as to whether he witnessed the murder or not, the Extradition Court found that the cooperator's statements were consistent as to who planned the murder with Petitioner and the cooperator; that the murder was planned at Petitioner's shop; regarding where the murder occurred and how; and that AK47s and pistols were used. (Id. at 8) Accordingly, the Extradition Court determined that the cooperator's statements were not “so contradictory as to be unreliable to support probable cause.” (Id.) (citing Zanazanian v. United States, 729 F.2d 627, 628 (9th Cir. 1984)). The Extradition Court acknowledged the Ninth Circuit's view that accomplice testimony “‘is, next to the confession of the defendant, the most satisfactory kind of evidence that can be produced as to the guilt of the defendant.'” (Id.) (quoting Curreri v. Vice, 77 F.2d 130, 132 (9th Cir. 1935)). Further, the Extradition Court recognized that both the cooperator and Eyewitness 1 identified the same additional individual as being involved in the murder of Lieutenant Hussein in their 2009 and 2010 statements. (Id. at 9)

The Extradition Court acknowledged that one of Eyewitness 1's statements “may be read as cutting against probable cause.” (Id.) In the statement, Eyewitness 1 told the Investigative Court that Petitioner attempted to stop Lieutenant Hussein's murder. (Ex. Doc. 3-4 at 6 (redacted); see also Ex. Doc. 3-1 at 106 (unredacted)) However, the Extradition Court pointed out that Eyewitness 1's statement to the Office of Counterterrorism, made the same day as the statement to the Investigative Court, suggested that Petitioner intervened after Lieutenant Hussein was killed. (Ex. Doc. 3-4 at 5 (redacted); see also Ex. Doc. 3-1 at 105 (unredacted)) The Extradition Court found that Eyewitness 1's latter statement “portrays [Petitioner] as the leader of the group carrying out the killing, and as one who would have been killed if not in accord with the killers.” (Ex. Doc. 302 at 10) Recognizing the Extradition Court's limited role, the Extradition Court determined that Eyewitness 1's potentially contradictory statements did not destroy probable cause. (Id.)

After acknowledging the presented Iraqi law that an individual may be guilty of premeditated killing as either a principal or accessory (Id. at 10-11; Ex. Doc. 3-3 at 26 (redacted); see also Ex. Doc. 3-1 at 26 (unredacted)), the Extradition Court concluded that Petitioner's conduct during the planning of Lieutenant Hussein's murder as well as Petitioner's armed presence at the scene of the murder was competent evidence to find probable cause that Petitioner was an accessory or co-conspirator to Lieutenant Hussein's murder:

Under the totality of the circumstances, including the testimony of the cooperator and the eyewitnesses, the Court concludes that there is competent evidence to find probable cause that [Petitioner] committed or was an accessory or co-conspirator in the murder of Lieutenant Hussein.

(Ex. Doc. 302 at 11)

2. Murder of Officer Mohammad

The Extradition Court found that Petitioner had admitted being in Fallujah on the day after Officer Mohammad's murder, October 4, 2006. (Ex. Doc. 302 at 14) Eyewitnesses 2 and 3 identified Petitioner as having fired at Officer Mohammad, and both the cooperator and Eyewitness 3 testified that the murder occurred during Ramadan at the market on Street 40 in Fallujah. (Id.) The Extradition Court observed that the 2006, 2010, and 2019 statements from the cooperator and Eyewitnesses 2 and 3 were consistent in alleging that Petitioner agreed with others to kill Officer Mohammad, that the group drove down Street 40 to find Officer Mohammad, and that Petitioner and others shot and killed Officer Mohammad. (Id.) The Extradition Court acknowledged some inconsistencies in the statements regarding the cars used and whether Petitioner carried a handgun or an automatic weapon. (Id.)

At the extradition hearing, Petitioner had argued that Eyewitness 3's statement lacked credibility because Eyewitness 3 referred to Petitioner as a “fugitive,” a term of art that suggested Eyewitness 3's statement was “presented in anticipation of an extradition request.” (Id.; Ex. Doc. 273 at 79, lines 7-16) In its Order Certifying Extradition, the Extradition Court rejected this argument, analogizing that counsel often draft affidavits for witnesses in United States legal proceedings. (Ex. Doc. 302 at 14) The Extradition Court concluded that Eyewitness 3's statement did not lack credibility even if Eyewitness 3 “did not personally originate every phrase in the statement[.]” (Id.)

Petitioner had also argued that Eyewitness 2's statement lacked credibility because the statement was made twelve years after the murder of Officer Mohammad. (Id. at 15; Ex. Doc. 273 at page 77, line 22, to page 78, line 23) The Extradition Court rejected this argument, finding that the case Petitioner had cited as support, In re Extradition of Mazur, 2007 WL 2122401, at *22 (N.D. Ill. July 20, 2007), involved more substantial issues of credibility where a witness admitted lying under oath and fabricating information. (Ex. Doc. 302 at 15)

The Extradition Court determined that the cooperator's as well as Eyewitness 2 and Eyewitness 3's statements identifying Petitioner as having fired at Officer Mohammad supported probable cause that Petitioner participated in Officer Mohammad's murder, and that inconsistencies among the statements were “not of a sufficient magnitude to undermine probable cause.” (Id.)

d. Applicable Law

The Federal Rules of Evidence do not apply in extradition hearings. Santos, 830 F.3d at 992; Then, 92 F.3d at 855. Instead, admissible evidence must only be properly authenticated. Emami, 834 F.2d at 1451. Evidence is authenticated pursuant to 18 U.S.C. § 3190, which provides:

Depositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.

The purpose of an extradition hearing is to “determine whether there exists probable cause that the fugitive committed the offense charged[.]” Kraiselburd, 786 F.2d at 1399. The country seeking extradition need not “produce all its evidence at an extradition hearing and it is not [the Court's] role to determine whether there is sufficient evidence to convict the accused.” Quinn, 783 F.2d at 815. As correctly explained by the Extradition Court:

Probable cause for extradition is assessed according to the standard for probable cause in American courts. Santos v. Thomas, 830 F.3d 987 at 1006. “Simply because evidence has been authenticated does not mean any evidence the government submits is sufficient to satisfy probable cause. Were that the case, the judiciary's role in the extradition process would be meaningless.” Id. This Court must “determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether evidence is sufficient to justify a conviction.” Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005) (en banc) (internal quotation marks omitted). The Court “does not weigh conflicting evidence and make factual determinations but, rather, determines only whether there is competent evidence to support the belief that the accused has committed the charged offense.” Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986); see also United States ex rel. Sakaguchi v. Kaulukulkui, 520 F.2d 726, 730 (9th Cir. 1975) (“The magistrate's function is to determine whether there is ‘any' evidence sufficient to establish reasonable or probable cause.”). The relator's evidence is “limited to that which explains the requesting country's proof and excludes contradictory or impeaching evidence.” In re Extradition of Handanovic, 826 F.Supp.2d 1237, 1239 (D. Or. 2011).

(Ex. Doc. 302 at 4-5)

Because a magistrate judge's finding of probable cause is “not a finding of fact ‘in the sense that the court has weighed the evidence and resolved disputed factual issues,' it must be upheld if there is any competent evidence in the record to support it.” Quinn, 783 F.2d at 791 (quoting Caplan v. Vokes, 649 F.2d 1336, 1342 n.10 (9th Cir. 1981); other citations omitted); Santos, 830 F.3d at 1008 (The “inquiry on habeas review is whether any competent evidence supports the extradition court's probable cause finding.”).

e. Discussion

i. Evidence Authentication

Petitioner does not make any argument that the evidence included in the extradition request and considered by the Extradition Court was not properly authenticated and certified by the appropriate individuals pursuant to 18 U.S.C. § 3190.³⁰

30 Indeed, attached to the extradition request is a certification signed on October 24, 2019, by David Ian Hopper, Consul General of the United States at the United States Embassy in Baghdad, Iraq. (Ex. Doc. 3-3 at 15) Mr. Hopper's certification authenticates the evidence in the extradition request and provides for the admissibility of such documents. Oen Yin-Choy, 858 F.2d at 1406 (during extradition proceedings, evidence is admissible when it has been authenticated); 18 U.S.C. § 3190 (“the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.”)

ii. Murder of Lieutenant Hussein

In urging that habeas relief be granted, Petitioner challenges one of the cooperator's June 6, 2010, statements by asserting that “[t]here is no indication that the information is transcribed, as would be the inference if it was actual testimony.” (Doc. 1 at 50) Petitioner observes that the statement “appears to be taken from notes of the Karkh Investigative Court and bears what purports to be the signature of the cooperator and stamps are affixed to the document.” (Id.) However, in extradition proceedings, formal testimony and transcription is not required, and the Court may even consider statements in law enforcement reports reflecting cooperator interviews. See Zanazanian, 729 F.2d at 627-28 (statements that “were given to the police and incriminated the speakers themselves sufficiently indicates their reliability” and were not too unreliable to support probable cause in extradition proceedings). Here, the Extradition Court did not err in considering the signed June 6, 2010, cooperator statement of which Plaintiff complains. Further, questions of evidentiary weight are “solely within the province of the extradition magistrate[,]” and as long as questions about reliability did not completely obliterate probable cause, the Extradition Court was “free to determine the weight to be accorded” each statement. Quinn, 783 F.2d at 815.

In challenging the Extradition Court's probable cause finding, Petitioner emphasizes several inconsistencies and details in the statements of the cooperator and Eyewitness 1. (Doc. 1 at 50-52) Petitioner also points to inconsistencies in the cooperator's statements made June 6, 2010, specifically that the cooperator stated that he was and was not present when Lieutenant Hussein was killed. (Doc. 1 at 50)

However, the Extradition Court was “free to determine the weight to be accorded” each statement in the face of any inconsistencies. Quinn, 783 F.2d at 815; see also Manrique v. Kolc, 65 F.4th 1037, 1044 (9th Cir. 2023) (quoting Sainez v. Venables, 588 F.3d 713, 718 (9th Cir. 2009)) (inconsistencies do not preclude probable cause because court does not weigh the evidence when reviewing probable cause determination). Some inconsistencies in the cooperator's statements, in light of the many other consistent details, do not defeat probable cause. See, e.g., In re Extradition of Luna-Ruiz, 2014 WL 1089134, at *7-9 (C.D. Cal. Mar. 19, 2014) (inconsistencies in witness' own statement did not negate probable cause in light of other consistencies); Gamez v. Stafford, 2012 WL 4471579, at *2 (S.D. Cal. Sep. 25, 2012) (some inconsistency did not mean no reliable evidence existed). Despite challenges to a statement's credibility, an alleged lack of credibility may only be a weakness in Iraq's case, as opposed to completely obliterating probable cause. Man-Seok Choe, 525 F.3d at 740 (witness' “lack of credibility is merely a weakness in Korea's case; it does not ‘completely obliterate[]' the evidence of probable cause”). The credibility of a statement alleged to contain inconsistencies and conflicting evidence is more appropriately reserved for determination at trial in the requesting country, Iraq. Barapind, 400 F.3d at 749-50 (credibility determination better reserved for trial and would exceed extradition court's limited role). Here, the Extradition Court considered the inconsistencies in the statements and found that inconsistencies in the statements before the Extradition Court did not defeat probable cause. (See Ex. Doc. 302 at 8-11) As the Extradition Court recounted, the eyewitness and cooperator's statements contain multiple important, consistent details. (Id.) The statements consistently identify that Lieutenant Hussein's murder occurred on Street 40 in Fallujah; the statements identify Petitioner as being present at the scene of the murder; the statements identify Petitioner as carrying a handgun and state that other participants carried AK47s; and the statements identify the same co-conspirator. (Ex. Doc. 3-1 at 85-86, 106, 110 (unredacted); see also Ex. Doc. 3-3 at 85-86 (redacted); Ex. Doc. 3-4 at 6, 10 (redacted)) These consistent details sufficiently support the Extradition Court's probable cause finding.

In his Petition, Petitioner also points out that Eyewitness 1's statement refers to “a confession disk about all the accomplices among them the criminal Ali Yousif” but that no such disk has been produced. (Doc. 1 at 52; see Ex. Doc. 3-1 at 105 (unredacted); Ex. Doc. 3-4 at 5 (redacted)) Whether or not such a disk exists, Iraq is not required to produce all its evidence for the extradition hearing. Quinn, 783 F.2d at 815. The absence of any such disk in the extradition request does not undermine the Extradition Court's finding of probable cause on habeas review.

In sum, competent evidence in the Extradition Court record supports the Extradition Court's finding of probable cause that Petitioner committed or was an accessory or coconspirator in the murder of Lieutenant Hussein. Further, the statement inconsistencies and issues identified by Petitioner do not undermine the Extradition Court's finding of probable cause for purposes of extradition.

iii. Murder of Officer Mohammad

Petitioner argues that while the cooperator refers to an individual by the name of Ali Yousif Al-Mahmadi, Petitioner is not referred to by this name anywhere else in the information provided to him in the Extradition Court. (Doc. 1 at 52) Respondents counter that Petitioner has used multiple aliases known to the Iraqi investigative courts and that the cooperator nevertheless identified Petitioner by other details that have been corroborated by the eyewitnesses, the Iraqi National Security Services, and Petitioner himself. (Doc. 26 at 19-20)

Notably, the case summary provided by Judge Jabbar Hussain ‘Alyawi, the investigative judge assigned to Petitioner's case, states that Petitioner is known by multiple names: “Ali Ahmed, Ali Yousif Ahmed Al-Nouri, Ali Yousif Ahmed Nouri, Ali Al-Daleme, Ali Yousif Ahmed Al-Mahmadi” and “Ali Yousif Ahmed.” (Ex. Doc. 3-1 at 19, 29, 31 (unredacted); Ex. Doc. 3-3 at 19, 29, 31 (redacted)) Eyewitnesses 2 and 3 identify Petitioner as “Ali Yousif Ahmed Nouri.” (Ex. Doc. 3-1 at 75-76 (unredacted); Ex. Doc. 33 at 75-76 (redacted)) Moreover, additional details appear to establish Petitioner's identity despite the cooperator's use of the name Ali Yousif Al-Mahmadi. For instance, the cooperator further identified Petitioner as the owner of a carpentry/wood store on Street 40 in Fallujah. (Ex. Doc. 3-1 at 107, 110 (unredacted); Ex. Doc. 3-4 at 7, 10 (redacted)) The Iraqi National Security Services confirmed this fact. (Ex. Doc. 3-1 at 31 (unredacted); Ex. Doc. 3-3 at 31 (redacted)) Further, Petitioner confirmed that he worked as a carpenter in his father's furniture store, “where they made cabinets, sofas, window and door frames.” (Ex. Doc. 50-2 at 6; Ex. Doc. 50-3 at 4) Given the accounts of Eyewitnesses 2 and 3 as well as the additional details identifying Petitioner, the cooperator's reference to Ali Yousif Al-Mahmadi does not undermine the Extradition Court's finding of probable cause. See, e.g., Noel v. United States, 12 F.Supp.2d 1300, 1304 (M.D. Fla. 1998) (Petitioner's birthday, nationality, and photograph established identification); In re Extradition of Atuar, 300 F.Supp.2d 418, 427 (S.D. W.Va. 2003) (noting “sworn statements of eye witnesses and photographs may be used to identify persons sought for extradition”); accord Fernandez v. Phillips, 268 U.S. 311, 313 (1925) (Mexican warrant using different name valid where Petitioner was named both ways in the proceedings and was identified by testimony).

Petitioner also argues that the cooperator stated that Petitioner surveilled the scene for Officer Mohammad's murder and was not the one who murdered Officer Mohammad. (Doc. 1 at 52) In his November 5, 2006, statement to the Al-Fallujah Investigative Court, the cooperator recounted that “a surveillance team went out to watch the policeman before assassinating him and this group consisted of the so called [Ali] Yousif and [redacted] and [redacted.]” (Ex. Doc. 3-1 at 81 (unredacted); Ex. Doc. 3-3 at 81 (redacted)) The cooperator stated that “Ali Yousif was surveilling the area, then we departed where shots were fired at him [the policeman] and he was killed with two other people because of the intensity of the shots by [redacted] who was carrying a hand gun while the rest had AK47s.” (Id.) In his continued statement, made the same day in 2006, the cooperator stated that he was in one car, and “[i]n the second car was Ali Yousif and [redacted] and [redacted] where we headed towards the market. I was carrying a hand gun while the rest had AK47s and they fired at the victim[.]” (Ex. Doc. 3-1 at 82 (unredacted); Ex. Doc. 3-3 at 82 (redacted)) Because the cooperator statement often refers to the group as a whole, the statement does not specifically mention whether Petitioner only surveilled or whether Petitioner was a part of the group carrying AK47s. In either circumstance, the cooperator's statements indicate that Petitioner was present at the time of Officer Mohammad's murder. Moreover, in his 2010 statement, the cooperator described that Petitioner carried an AK47 but used a 9mm pistol to fire upon Officer Mohammad. (Ex. Doc. 3-1 at 108 (unredacted); Ex. Doc. 3-4 at 8 (redacted)) In a follow-up statement made the same day, the cooperator also stated that the group “carried Ak47s and Ali Yousif had on a 9mm pistol.” (Ex. Doc. 3-1 at 109 (unredacted); Ex. Doc. 3-4 at 9 (redacted))

There is enough consistency in the cooperator's statements to support the Extradition Court's probable cause finding. Each statement identifies Petitioner as participating in the murder of Officer Mohammad, whether or not the statement specifically names Petitioner as one of the individuals who shot Officer Mohammad. (Ex. Doc. 3-1 at 81-82, 85, 108-09 (unredacted); Ex. Doc. 3-3 at 81-82, 85 (redacted); Ex. Doc. 3-4 at 8-9 (redacted)) A cooperator's statement, as accomplice testimony, “is, next to the confession of the defendant, the most satisfactory kind of evidence that can be produced as to the guilt of the defendant.” Curreri, 77 F.2d at 132. The self-incriminating nature of the cooperator's statements, as well as the fact that the cooperator's statements are corroborated by other witness statements, further supports a finding of sufficient evidence for probable cause. Manrique, 65 F.4th at 1044 (accomplice testimony provided probable cause); Zanazanian, 729 F.2d at 627-28 (self-incriminating accomplice statements reliable and sufficient to establish probable cause); Eain, 641 F.2d at 510. Inconsistencies identified by Petitioner regarding the cooperator's statements do not negate probable cause and are more appropriately suited for resolution in Iraq's legal proceedings. Barapind, 400 F.3d at 74950.

Petitioner also raises the absence of information regarding the cooperator's location and circumstances in the time between the cooperator's 2006 and 2010 statements. (Doc. 1 at 53) Petitioner claims that the cooperator's 2010 statement gratuitously includes that “[t]his is my statement without being coerced.” (Id.) (citing Ex. Doc. 3-3 at 80) However, the cooperator's 2010 statements do not include such a line (Ex. Doc. 3-3 at 80, 85-86 (redacted); see also Ex. Doc. 3-1 at 80, 85-86 (unredacted)); only the cooperator's 2006 statement to the Al-Fallujah Investigative Court includes, “This is my statement without being coerced.” (Ex. Doc. 3-1 at 82 (unredacted); Ex. Doc. 3-3 at 82 (redacted)) Moreover, the cooperator's 2006 and 2010 statements are consistent in many details about the events. Both of the cooperator's statements recount that the group drove two cars to commit the offense, identify the location of the offense as Street 40, identify Officer Mohammad as being near the stores on Street 40, and recall that the perpetrators used AK47s and a handgun to carry out the murder. (Ex. Doc. 3-1 at 81-82, 108-09 (unredacted); Ex. Doc. 33 at 81-82 (redacted); Ex. Doc. 3-4 at 8-9 (redacted)) Also, both Eyewitnesses 2 and 3 corroborate the cooperator's statement that Petitioner shot Officer Mohammad. (Ex. Doc. 3-1 at 75-76 (unredacted); Ex. Doc. 3-3 at 75-76 (redacted))

In addition, Petitioner argues that despite the cooperator naming other participants in the murder of Officer Mohammad, no explanation has been provided for the absence or silence of these other participants. (Doc. 1 at 53) As previously noted, Iraq is not required to produce all its evidence to the Extradition Court for the extradition hearing. Quinn, 783 F.2d at 815. An extradition hearing is not intended to be a trial or a mini-trial, and requiring Iraq to produce all evidence in existence would improperly inflate the role of the extradition court. Oen Yin-Choy, 858 F.2d at 1407 (extradition proceedings are not a “dress rehearsal for trial”).

Finally, Petitioner implies that Eyewitness 2's statement made in February 2019, more than twelve years after the murder of Officer Mohammad, is unreliable due to the delay between the murder and Eyewitness 2's statement. (Doc. 1 at 53) Addressing this argument, the Extradition Court found the delay did not undermine the statement's credibility “[i]n the absence of any other fact casting doubt on the veracity of the statement[.]” (Ex. Doc. 302 at 15) The Extradition Court was free to consider and find that the amount of time between the murder of Officer Mohammad in 2006 and Eyewitness 2's statement in 2019 does not undermine consideration of the statement for probable cause purposes. See, e.g., In re Extradition of Morales-Hernandez, 2019 WL 1230350, at *18-19 (E.D. Cal. Mar. 15, 2019) (delay in finding witnesses who left scene of the crime was not a persuasive argument undermining probable cause).

After considering all of Petitioner's arguments and the record in the Extradition Court, competent evidence supports the Extradition Court's finding of probable cause that Petitioner participated in the murder of Officer Mohammad. Further, the statement inconsistencies and issues identified by Petitioner do not undermine the Extradition Court's finding of probable cause for purposes of extradition.

iv. Petitioner's Four Investigative Declarations (Doc. 35)

With his reply in support of the Petition, Petitioner submitted under seal four declarations of individuals, each of which was obtained through an international investigation conducted after extradition proceedings concluded and after Petitioner filed the Petition. (Doc. 35) Petitioner asserts that these declarations are pertinent to the issue of probable cause and states that some of the witness statements were intended to be taken as part of his investigative plan originally submitted to the Extradition Court on April 29, 2021. (Doc. 32 at 8-9; see Ex. Doc. 210) Petitioner argues that the declarations show that he “did not commit the murder of Lieutenant Hussein” and that “an individual named by the Iraqi court as a witness to the murder of Officer Mohammad has taken a very different view of the matter.” (Id. at 8)

Federal courts have considered newly discovered evidence during habeas review of a certificate of extraditability where such evidence casts doubt on a finding of probable cause. See Na-Yuet, 690 F.Supp. at 1011; Gill, 747 F.Supp. at 1046; c.f. Peroff, 563 F.2d at 1101 (despite newly discovered evidence introduced at habeas, government produced ample evidence to support probable cause); Venckiene, 328 F.Supp.3d at 869 (government evidence supported probable cause despite new evidence introduced in habeas proceedings). These courts have declined to remand to the Extradition Court for a rehearing of the newly discovered evidence where ample probable cause supports the Extradition Court's findings. See Venckiene, 328 F.Supp.3d at 869; Peroff, 563 F.2d at 1101.

Despite his assertion that the additional witness declarations (Doc. 35) “go directly to the issue of probable cause” (Doc. 32 at 8, 11), Petitioner does not explain how these declarations would obliterate or explain away probable cause, as opposed to merely contradicting the government's evidence. See Santos, 830 F.3d at 992-93 (discussing explanatory versus contradictory evidence). Three of the four witness statements submitted by Petitioner place Petitioner at the scene of Lieutenant Hussein's murder, but directly contradict witness and cooperator statements submitted in support of extradition that Petitioner participated in the murder of Lieutenant Hussein. (Doc. 35 at 2-3, 5-6, 8)

Further, the fourth declaration submitted by Petitioner, which pertains to the murder of Officer Mohammad, was made by an attorney licensed to practice law in Iraq who avers that he made contact with Eyewitness 2 on December 5, 2022. (Doc. 35 at 10) The declaration reflects that the attorney tried to find Eyewitness 2 at a market. (Id.) A vendor at the market would not give the attorney the phone number of the witness, but instead the vendor represented that the vendor would call Eyewitness 2 from the vendor's phone. (Id.) The attorney reports the vendor made a call, the attorney spoke with the person on the phone, and the person on the phone stated that he “was not at the scene of the shooting and did not see anything.” (Id.) When the attorney asked that the person on the phone come and talk to the attorney in person, the person said they would do so in a few minutes. (Id.) The attorney then received a call from the brother of Officer Mohammad who told the attorney that the attorney had no right to question Eyewitness 2 without “an Iraqi judicial order or an official order from the Americans.” (Id.) The declaration states that Eyewitness 2 arrived at the market and spoke with the attorney but Eyewitness 2 “refused to answer any questions except in the presence of his cousins.” (Id.) The declaration does not go on to state whether or not questions were asked of Eyewitness 2 in the presence of the cousins or the answers to any additional questions that may have been asked in person. (Id.)

The attorney's declaration invites credibility determinations between the unsworn statements in the declaration and sworn statement of Eyewitness 2 submitted in support of the extradition request.³¹ Consideration of the attorney's declaration in light of the sworn statement by Eyewitness 2 presented in support of the extradition request would essentially require a “mini trial” in weighing of the circumstances, incentives, timing, and completeness of the contradictory unsworn statement purportedly made by Eyewitness 2 to an attorney in a market over the phone. The attorney's declaration is the type of evidence and these are the credibility and other considerations prohibited in extradition proceedings. Barapind, 400 F.3d at 749-50 (challenges to credibility and consideration of conflicting evidence are matters for adjudication in the country to which extradition is sought).

31 The statement of Eyewitness 2 submitted in support of the extradition request states on its face that Eyewitness 2 had been sworn before making the statement, contains a thumbprint of Eyewitness 2, and contains a signature of an Iraqi judge. (Ex. Doc. 3-1 at 75 (unredacted); Ex. Doc. 3-3 at 75 (redacted))

Thus, Petitioner's witness declarations do not obliterate or cast substantial doubt on the Extradition Court's probable cause findings, particularly given the ample evidence of probable cause in the Extradition Court record. The Extradition Court's role was to determine if there was “any competent evidence” supporting probable cause for each of the offenses. The Extradition Court determined there was. Upon review, the record-even as supplemented by Petitioner-supports the determination that competent evidence supports probable cause for the offenses in the Extradition Complaint.

v. Conclusion

For all reasons set forth above, Petitioner's Claim 6 fails.

7. Claim 7

a. Parties' Arguments

In Claim 7, Petitioner argues that he has not been charged with an enumerated crime of the Extradition Treaty as required by Articles I and II of the Treaty. (Doc. 1 at 54-61) As a first matter, Petitioner argues that the Iraqi arrest warrant included in the extradition request was not valid and that the invalidity is not a mere “technicality,” as the Extradition Court found. (Id. at 54) Petitioner then asserts that the Extradition Treaty only allows extradition of individuals charged with or convicted of offenses enumerated in the Treaty, yet the Iraqi arrest warrant does not indicate that Petitioner is or will be charged with any of the Treaty's enumerated offenses. (Id. at 55) Petitioner argues that the extradition materials demonstrate that Iraq only wishes to investigate Petitioner and has not yet formally charged Petitioner. (Id. at 56, 60-61) Accordingly, Petitioner asserts that he is not charged with or convicted of an enumerated offense under the plain language of the Extradition Treaty. (Id. at 56-57) Further, because the arrest warrant does not specify which crime Petitioner will be charged with, Petitioner asserts that his extradition would violate Article IV of the Extradition Treaty, which states that “[n]o person surrendered shall be tried for any crime other than that for which he was surrendered.” (Id. at 57) In his reply, Petitioner reasserts his Petition arguments. (Doc. 32 at 17-18)

Respondents assert that “Petitioner has failed to demonstrate by a preponderance of the evidence that he is not ‘charged with' a crime as required under the Treaty.” (Doc. 26 at 35, 35-48) Respondents argue that the term “charged with” in the Extradition Treaty should be construed broadly and only requires a person to be accused of a crime, instead of requiring a formal charging document. (Id. at 39-44) Accordingly, Respondents assert that the warrant for Petitioner's arrest constitutes a valid “charge” under the Extradition Treaty. (Id. at 44-48) Moreover, Respondents argue that this Court should defer to Iraq's interpretation of its own law. (Id. at 37-38) To that end, Respondents argue that the Extradition Court's finding that the Iraqi government seeks extradition so that it may prosecute Petitioner is not “clearly erroneous” and is well supported by the record. (Id. at 36-38)

b. Extradition Court Proceedings

In the materials provided with the extradition request, Iraq provided a copy of an “Arrest and Investigation Warrant” dated May 12, 2019, and issued by Judge Jabbar Hussain ‘Alaywi of the “Republic of Iraq, Higher Judicial Council, Magistrate Court of Al-Karkh, Specialized in Terrorism Cases.” (Ex. Doc. 3-3 at 49-50 (redacted); see also Ex. Doc. 3-1 at 49-50 (unredacted)) The warrant names Petitioner as “Ali Yousif Ahmed al-Nouri” and authorizes Petitioner's arrest and detention “until he is presented to us to respond to the charges against him which is punishable according to article 406/1/A of the Iraqi Penal Code 111 for year 1969, Amended” for premeditated murder (Ex. Doc. 3-3 at 49; Ex. Doc. 254-2 at 5)

In its Order Certifying Extradition, the Extradition Court addressed Petitioner's arguments regarding the sufficiency of the arrest warrant, the necessity of the charging instrument, and the enforceability of Article IV of the Extradition Treaty. (Ex. Doc. 302 at 15-20)

Regarding the sufficiency of the arrest warrant, the Extradition Court noted that:

The Certificate of Authentication from the United States Department of State (doc. 3-3 at 15) and the arrest warrant issued by the Magistrate Court of Al-Karkh (doc. 3-3 at 49-51) state Relator is charged with murder, an offense covered by the Treaty.

(Id. at 15) The Extradition Court refrained from deciding whether the arrest warrant for Petitioner was in technical compliance with Iraqi law, pointing out that “courts have not probed deeply into questions of foreign law.” (Id. at 16) (citing Emami, 834 F.2d at 1449, and Skaftouros, 667 F.3d at 159-60). As for the validity of the warrant, the Extradition Court stated that a warrant must be “duly authenticated” and show that the fugitive is “currently charged with an offense recognized by the treaty” and is therefore prosecutable. (Id.) (quoting Skaftouros, 667 F.3d at 160). Quoting Noeller v. Wojdylo, 922 F.3d 797, 80506 (7th Cir. 2019), the Extradition Court noted that “extradition proceedings are not vehicles for United States federal courts to interpret and opine on foreign law” or “adjudicate the validity of the warrant[.]” (Id. at 16-17)

As for whether Petitioner had been charged with a crime, the Extradition Court pointed out that Judge Jabbar Hussain ‘Alaywi requested extradition in order to prosecute Petitioner. (Id. at 18) (citing Ex. Doc. 254-2 at 5) Despite Petitioner's arguments that Iraq had to produce a formal charging instrument, the Extradition Court determined that formal charges did not need to be filed prior to extradition. (Id. at 18-19) In doing so, the Extradition Court relied on Emami, in which the Ninth Circuit determined that formal charges against the petitioner were not required for extradition to Germany. (Id.) Although Petitioner attempted to distinguish the treaty in Emami as broader than the Extradition Treaty here, the Extradition Court pointed out that the court in Emami adopted language from In re Assarsson, 635 F.2d 1237 (7th Cir. 1980), in which a treaty contained the same language as the Extradition Treaty here. (Id.) Therefore, the Extradition Court concluded that the language in Article II of the Extradition Treaty requiring a fugitive to be “charged with or convicted of” a crime did not require Iraq to file formal charges against Petitioner prior to extradition. (Id. at 19)

Finally, the Extradition Court determined that requirement of formal charges did not render Article IV of the Extradition Treaty effectively unenforceable. (Id. at 19-20) To the contrary, the Extradition Court concluded that Article IV allows a surrendering country to consent to the requesting country trying a fugitive for crimes other than those for which extradition was granted. (Id. at 20) Accordingly, the Extradition Court determined that Iraq may try Petitioner for offenses other than those for which Petitioner's extradition is being sought, as long as the United States consents. (Id.)

c. Applicable Law

Article I of the Extradition Treaty provides that the contracting parties agree:

to deliver up to each other reciprocally, upon mutual requisition duly made pursuant to the provisions of this Treaty, any person charged with or convicted of any of the crimes specified in Article II of this Treaty committed within the jurisdiction of one of the High Contracting Parties while said person was actually within such jurisdiction when committing the crime and who shall be found within the territories of the other High Contracting Party, provided that such surrender shall take place only in the following circumstances:

(a) When the person whose surrender is requested is charged with a crime, provided there shall be produced sufficient evidence, according to the laws of the country where that person is found, to justify his apprehension and commitment for trial if the crime had been there committed.

(b) When the person whose surrender is requested has been duly convicted, and when sufficient evidence is produced to prove that the said person is actually the person convicted.

Article II of the Extradition Treaty enumerates the specific offenses for which a person may be extradited if said person has “been charged with or convicted of” an enumerated crime and the crime is punishable in both contracting countries.

The question of “whether the offense comes within the treaty ordinarily involves a determination of whether it is listed as an extraditable crime and whether the conduct is illegal in both countries.” Quinn, 783 F.2d at 791. These determinations “are purely legal questions that the habeas court may review de novo.” Id.

d. Discussion

i. Technical Compliance

1. Warrant facially valid

Where a fugitive is charged with an enumerated crime under the Extradition Treaty, Article XI of the Extradition Treaty requires that “a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and copies of the depositions upon which such warrant may have been issued, shall be produced with such other evidence or proof as may be deemed competent in this case.” To meet this requirement, Iraq must have produced a warrant showing that Petitioner is prosecutable upon extradition to Iraq. See Skaftouros, 667 F.3d at 161.

With its extradition request, Iraq produced an arrest warrant signed by Judge Jabbar Hussain ‘Alaywi, dated May 12, 2019, from the Higher Judicial Council, Magistrate Court of Al-Karkh. (Ex. Doc. 3-3 at 49 (redacted); see also Ex. Doc. 3-1 at 49 (unredacted)) The Iraqi arrest warrant identifies that Petitioner is sought for charges punishable under article 406/1/A of the Iraqi Penal Code for premeditated murder. (Id.; Ex. Doc. 254-2 at 5) The United States Department of State provided a certificate authenticating the Iraqi extradition request, including the arrest warrant, and the certificate was signed by David Ian Hopper, Consul General of the United States at the United States Embassy in Baghdad, Iraq, on October 24, 2019. (Id. at 15) The Iraqi arrest warrant is therefore facially valid pursuant to the terms of the Extradition Treaty.

2. Defer to Iraq's interpretation

Petitioner argues that the Iraqi arrest warrant is fundamentally invalid, that such invalidity is not a technicality, and that “the forum that issued the warrant does not have authority to try the case[.]” (Doc. 1 at 54) Petitioner relies on the opinion of his expert witness, Professor Hamoudi, who opined that Petitioner's case was improperly transferred from the investigative court in Fallujah to the investigative court in Ramadi and then transferred again to the “specialized terrorism investigative court of Karkh” in Baghdad. (Ex. Doc. 200-3 at 21-22) Professor Hamoudi claims that Iraqi criminal procedure only allows the transfer of investigatory cases when certain conditions have been met, including “contemporaneous authorization and documentation of the same from among Iraq's highest executive or judicial authorities, as well as a justification for the transfer.” (Id. at 22) Professor Hamoudi opines that “[t]here is no explanation for why this highly unusual transfer was undertaken, nor is there a suggestion anywhere that the conditions required by law were followed in the transferring of these cases.” (Id.)

In a report to the “Federal Appellate Court, Baghdad, al-Karkh,” Judge Jabbar Hussain ‘Alaywi stated that:

[l]egal actions have been taken against the defendant (‘Ali Yousif Ahmad al-Nouri) according to the provisions of Article A/1/406 for amended Iraqi Penal Code 111 for the year 1969 for premeditated murder based on the statements of the plaintiffs and testimony of the witnesses that the court has heard. The defendant is a resident of al-Anbar Province; therefore, the court requested law enforcement agencies in this province to provide the court with available information about him. The Investigative Court of al-Anbar informed us of investigative papers indicating that the aforementioned defendant is a fugitive and as it relates to the same case at hand in this court, it was referred to us and was consolidated with the case at hand in this court as both complaints relate to the same issue. Both cases were consolidated based to Article A/54 of the Iraqi Code of Penal Proceedings 23 for the year 1971, which states, (If a complaint or reporting against a defendant were presented to two or more relevant investigative authorities, then the investigative papers must be transferred to the body where the complaint or reporting was initially filed).

(Ex. Doc. 254-2 at 3) Judge Jabbar Hussain ‘Alaywi explained that after Petitioner's extradition, Petitioner would be “investigated according to due process and he will be questioned regarding the charge that he is facing and his statement recorded[.]” (Id.)

A foreign country's compliance with its own criminal procedure is a matter not properly addressed in United States courts. See, e.g., Noeller, 922 F.3d at 805-06 (challenge to validity of Mexican arrest warrant belonged in Mexican court); Skaftouros, 667 F.3d at 156, 160-61 (technical objections to Greek arrest warrant better addressed in Greek court). In the same vein, United States courts typically do not question a foreign party's interpretation of its own laws during extradition proceedings. See, e.g., Grin v. Shine, 187 U.S. 181, 190 (1902) (declining to inquire into Russian criminal law and procedure); Emami, 834 F.2d at 1449 (declining to inquire into German criminal procedure). Deference to the foreign party's interpretation of its laws owes to the principle of comity between foreign states. See Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court, 482 U.S. 522, 546 (1987) (citing Hilton v. Guyot, 159 U.S. 113 (1895)) (recognizing “demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation”).

Although a court may not determine whether a warrant technically complies with foreign law and procedure, a court may determine that a foreign arrest warrant is invalid “where the court that issued the warrant no longer has the power to enforce it.” Skaftouros, 667 F.3d at 160 (citing Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009)). In such a case, where an error is jurisdictional, a court merely determines whether the requirements of an extradition treaty have been met, as opposed to determining questions of foreign law. Id. In Sacirbey, the foreign court that issued a warrant for petitioner's arrest was subsequently dissolved and no longer retained jurisdiction to enforce the arrest warrant. 589 F.3d at 6568.

Here, Petitioner's argument regarding the transfer of his case between courts concerns technical requirements and requires determinations of Iraqi law that are not properly addressed in this Court. Judge Jabbar Hussain ‘Alaywi states that his court received Petitioner's consolidated cases pursuant to Article A/54 of the Iraqi Code of Penal Proceedings. (Ex. Doc. 254-2 at 3) The statement of Judge Jabbar Hussain ‘Alaywi conflicts with Professor Hamoudi's opinion as to whether Judge Jabbar Hussain ‘Alaywi's court could properly issue the arrest warrant and investigate Petitioner. Such a determination depends upon provisions of the Iraqi criminal procedure rules and is not a jurisdictional determination. (Ex. Doc. 200-3 at 21-22; Ex. Doc. 254-2 at 3) This Court is ill-equipped to make such a determination of Iraqi law and is not in a position to credit Professor Hamoudi's opinion over that expressed by the Iraqi judicial system. As such, this Court defers to the Iraqi courts to determine whether the arrest warrant for Petitioner was properly issued. See Noeller, 922 F.3d at 805-06; Skaftouros, 667 F.3d at 156, 160-61.

ii. “Charged With”

Petitioner next argues that he has not been charged with an extraditable crime because no formal charges have been filed and because Iraq has not shown a clear intent to prosecute him. (Doc. 1 at 55-61; Doc. 32 at 18) Respondents counter that no formal charges are required under the Extradition Treaty's language and that Iraq has shown a clear intent to prosecute, an intent to which this Court should show deference. (Doc. 26 at 36-44)

1. No formal charges required

Petitioner argues that the phrase “charged with” requires Iraq to file formal charges against him. (Doc. 1 at 56-60) Respondents assert that “charged with” should be interpreted broadly to be consistent with the views of the United States Department of State and the Iraqi government. (Doc. 26 at 39-44)

Treaty interpretation begins with the text of the treaty. Medellin v. Texas, 552 U.S. 491, 506-06 (2008). Where interpretation of a treaty allows for two disparate interpretations, “one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred.” Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933). As such, because an extradition treaty creates rights “of one country to demand the extradition of fugitives in the other country[,]” extradition treaties are construed in favor of facilitating extradition. Martinez v. United States, 828 F.3d 451, 463 (6th Cir. 2016) (citing Factor, 290 U.S. at 293-94, and M. Cherif Bassiouni, International Extradition: United States Law and Practice 142 (6th ed. 2014)).

In line with the principles set out in Factor and Martinez, the Ninth Circuit has determined that the term “charged with” does not require that formal charges be filed against an individual. See Emami, 834 F.2d at 1448 (adopting Assarsson, 635 F.2d at 124043); Manrique, 65 F.4th at 1042-43 (in extradition stay context, “charged with” did not require formal charges where U.S.-Peru treaty did not specify particular charging documents). In Emami, the Ninth Circuit determined that the extradition treaty between the United States and Germany allowed extradition where the requesting party intended to prosecute, as opposed to allowing extradition only where formal charges had been filed. 834 F.2d at 1448-49. The Ninth Circuit considered language in the United States-Germany treaty allowing extradition of “persons ‘who have been charged with an offense or are wanted by the other Contracting Party for the enforcement of a judicially pronounced penalty or detention order[.]'” Id. In doing so, the Ninth Circuit relied on a case from the Seventh Circuit, Assarsson, in which the treaty at issue contained the same language as the Extradition Treaty here. Id. (citing Assarsson, 635 F.2d at 1241-44). In Assarsson, the relevant treaty allowed extradition of individuals “who have been charged with or convicted of any of the offenses specified in article II” of the treaty. 635 F.2d at 1241-42. The Seventh Circuit held that such language did not require the filing of formal charges because “charged” only meant “accused.” Id. In Emami, the Ninth Circuit applied the Seventh Circuit's reasoning in Assarsson to the United States-Germany treaty and concluded that formal charges were not required under the language of the treaty at issue. 834 F.2d at 1448.

More recently, in Manrique v. Kolc, the Ninth Circuit addressed the phrase “charged with” in a United States-Peru treaty in the context of a stay of extradition. 65 F.4th at 104143. The Ninth Circuit determined that language in the United States-Peru treaty providing for extradition of persons “charged with, found guilty of, or sentenced for, the commission of an extraditable offense” did not require formal charges because the United States-Peru treaty did not specify that a particular document was required to accompany an extradition request. Id. at 1042. Instead, the United States-Peru treaty listed required documents for categories of extradition requests, including requests for “a person who is sought for prosecution.” Id. “[I]nterpreting ‘charged with' to mean ‘sought for prosecution[,]'” the Ninth Circuit found that “charged with” encompassed charging steps, including investigative steps, prior to formal charges. Id. As such, because Peruvian prosecutors had issued a document accusing the petitioner of crimes at the end of an investigatory phase but prior to a formal charging phase, the Ninth Circuit determined that the petitioner had been sufficiently “charged with” a crime under the United States-Peru treaty. Id. at 104243 (citing favorably Emami, 834 F.2d at 1448, and Assarsson, 687 F.2d at 1160). Moreover, the United States-Peru treaty's requirement that a charging document be submitted with an arrest warrant did “not define the level of formality” required of the charging document. Id. The Ninth Circuit also considered that the drafting history of the United States-Peru treaty suggested that the parties intended to include persons sought for arrest “regardless of whether such warrant was issued pursuant to an indictment, complaint, information, affidavit, or other lawful means for initiating an arrest for prosecution under the laws in Peru or the United States.” Id. at 1043. Because the Ninth Circuit's “rules of interpretation militate against reading in a requirement of particular formal charges where the treaty makes no such specification[,]” the Ninth Circuit concluded that interpreting “charged with” not to require formal charges enlarged the rights of and respected the views of the parties to the treaty at issue. Id.

The Court is to give weight to the State Department's interpretation of a treaty, but the Court does not defer to the interpretation of the Executive Branch. Medellin v. Texas, 552 U.S. 491, 513 (2008) (“It is, moreover, well settled that the United States' interpretation of a treaty ‘is entitled to great weight.'”) (citations omitted); Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006) (“If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,' headed by the ‘one supreme Court' established by the Constitution.”) (quoting Marbury v. Madison, 1 Cranch. 137, 177 (1803)). Here, the Department of State has opined that Petitioner has been charged with a crime under the Extradition Treaty and that formal charges are not required. (Ex. Doc. 1993 at 2-3)

Tom Heinemann, Attorney Adviser for the Department of State, declared that “charged with” does not limit applicability of the Extradition Treaty to cases involving formal charges and only requires that an individual be sought for prosecution in the requesting country. (Id. at 2-3) In addition, Mr. Heinemann stated that not requiring a formal charging document is consistent with the Arabic version of the Extradition Treaty, which translates “charged with” as “suspected,” “accused,” “charged,” or “indicted,” but most accurately “a person accused of” an enumerated crime. (Id. at 3)

Indeed, Petitioner's expert, Professor Hamoudi, reports that “there is no term ‘charge' in Iraqi law[.]” (Doc. 200-3 at 16) Professor Hamoudi summarized that:

The Iraqi system is a particularly antiquated version of the inquisitorial system, pursuant to which an investigative court, rather than police or prosecutors, have the authority to investigate whether a crime occurred. If the investigative court believes that a crime occurred, it then issues a report making the charge and transfers the matter to a trial court for final determination, specifying in the process which crimes it thinks the accused committed and why.

(Id. at 4) In his report, Professor Hamoudi opines that the “transfer decision operates in a manner equivalent to a charge, in that it is the step that the investigative authority has the power to take which formally accuses the defendant of having committed a crime.” (Id. at 16)

Yet, State Department Attorney Advisor Heinemann accurately describes that Article XI of the Extradition Treaty, setting forth the documents that must accompany an extradition request, does not require an indictment or other charging document. (Id. at 3) Cf. Aguasvivas v. Pompeo, 984 F.3d 1047, 1060 (1st Cir. 2021) (“The treaty in this case, though, adds to the list of required documents a requirement that was missing in those earlier treaties: ‘the document setting forth the charges.' For that reason, our agreement with the holdings in Emami and Assarsson provides no succor for the United States in this case.”).

Petitioner argues that the United States has entered into treaties with language less restrictive than the Extradition Treaty here, and as support, points to the United States-Germany treaty in Emami. (Id. at 58-59) Based on the language of Emami, Petitioner argues that the different language in the Extradition Treaty here shows that the United States and Iraq intended to require the filing of formal charges that may not be altered following extradition. (Id. at 59)

As discussed above, in Emami the Ninth Circuit addressed “charged with” language in the United States-Germany treaty and determined that such language did not require formal charges. 834 F.2d at 1448. Although Petitioner points to language in the United States-Germany treaty that does not exist in the United States-Iraq Extradition Treaty, the Ninth Circuit specifically addressed “charged with” language in Emami and adopted the reasoning of Assarsson, where the treaty at issue had similar language to the Extradition Treaty here. Id. at 1448-49. Moreover, in both Emami and Assarsson, the respective courts determined that an absent requirement of formal charges in the treaty guided the finding that the requesting governments did not need to provide formal charges with their extradition requests. Emami, 834 F.2d at 1448; Assarsson, 635 F.2d at 1243. More recently, in Manrique, the Ninth Circuit adopted and extended the reasoning of Emami and Assarsson. 65 F.4th at 1041-43. Thus, the Court rejects Petitioner's argument that the treaty language and reasoning in Emami guides a finding that the Extradition Treaty here requires formal charges.

As in Emami, Assarsson, and Manrique, the Extradition Treaty between the United States and Iraq provides for the extradition of a person “charged with” a crime, and any express requirement of formal charges or a specific charging document is absent from the Extradition Treaty. Accordingly, construing the Extradition Treaty's text in light of binding precedent, the Extradition Treaty does not require the filing of formal charges for Petitioner to be “charged with” an enumerated offense. Construing “charged with” in this manner “enlarges the rights of the signatories and respects the interpretations given by” the Department of State, as favored by the United States Supreme Court. Manrique, 65 F.4th at 1043.

2. Iraq seeks to prosecute

Respondents argue that Iraq seeks Petitioner's extradition in order to prosecute and that this Court should defer to Iraq's demonstrated intent to prosecute. (Doc. 26 at 36-38) In his Petition, Petitioner asserts, arguendo, that if formal charges are not required, Iraq must show a clear intent to prosecute, but Petitioner maintains that Iraq has not done so. (Doc. 1 at 60-61)

As stated above, Article I of the Extradition Treaty requires the contracting parties to “deliver up [] any person charged with or convicted of any of the crimes specified in Article II of this Treaty” provided the requirements of the Extradition Treaty are met. Article II of the Extradition Treaty enumerates twenty-five crimes for which a person shall be extradited pursuant to the Treaty if said person has “been charged with or convicted of” any of the enumerated crimes. In relevant part, the first enumerated crime in Article II of the Extradition Treaty is “[m]urder, including parricide, assassination, willful murder with premeditation, manslaughter when committed voluntarily by the perpetrator, and also the crimes of poisoning or infanticide.”

Judge Jabbar Hussain ‘Alaywi stated that Iraq seeks Petitioner's extradition “to bring him in front of the Iraqi courts in order to prosecute him in accordance with the law.” (Ex. Doc. 254-2 at 5) Judge Jabbar Hussain ‘Alaywi described the procedures upon Petitioner's presentation to the investigative judge in Iraq after extradition, including implementation of rights afforded Petitioner (such as the right to be informed of charges, right to counsel, and right to remain silent), the timing of any questioning, and court determination of whether there is sufficient evidence to further prosecute Petitioner at that time. (Id. at 3-5)

Petitioner argues that he has not been “charged with” a crime under Articles I and II because Iraq has not decided whether to prosecute Petitioner and has only issued an arrest warrant for investigative purposes. (Doc. 1 at 54-57) Petitioner points to Judge Jabbar Hussain ‘Alaywi's statements that Petitioner “will be investigated” following extradition and will be referred to a court “[i]f the court finds there is sufficient evidence to prosecute” Petitioner (Ex. Doc. 254-2 at 3), as well as Judge Jabbar Hussain ‘Alaywi's statement that the Iraqi “investigation is ongoing” in the murder cases of Khalid Ibrahim Mohammad and Issam Ahmed Hussein (Ex. Doc. 3-3 at 19, 21). Petitioner argues that if he has not been charged with a crime, he may not be surrendered pursuant to Article IV of the Extradition Treaty. (Id. at 57-58) However, Judge Jabbar Hussain ‘Alaywi's statement also demonstrates Iraq's intention to prosecute Petitioner upon extradition. (See Ex. Doc. 2542 at 5) Judge Jabbar Hussain ‘Alaywi asserted that Petitioner will be investigated, questioned, and brought before the Iraqi courts, and if enough evidence exists to prosecute Petitioner upon such, his case will be referred to the relevant court. (Id. at 3-4) Further, the arrest warrant for Petitioner states that law enforcement is authorized to detain Petitioner “until he is presented to us [the Iraqi court] to respond to the charges against him which is punishable according to article 406/1/A of the Iraqi Penal Code 111 for year 1969, Amended.” (Ex. Doc. 3-3 at 49 (redacted); see also Ex. Doc. 3-1 at 49 (unredacted))

Although Petitioner argues that the Iraqi arrest warrant will only lead to an investigation and asserts that intent to investigate is not intent to prosecute (Doc. 32 at 18), it is not this Court's role to interpret Iraqi law, nor is this Court well-positioned to do so. See, e.g., Emami, 834 F.2d at 1449 (“We refrain from interpreting the requirements of German criminal procedure both out of respect for German sovereignty and because we recognize the chance of erroneous interpretation is much greater when we try to construe the law of a country whose legal system is not based on common law principles.”). As such, this Court should defer to the Iraqi government's interpretation of its own criminal law and procedure.

iii. Articles II and IV

Finally, Petitioner argues that his extradition would violate Articles II and IV of the Extradition Treaty and would render Articles II and IV surplusage. (Doc. 1 at 57-59) Petitioner asserts that if he has not yet been charged with a crime, there is no way for the United States to ensure that the crime for which Iraq seeks extradition is enumerated in Article II of the Extradition Treaty. (Doc. 1 at 57-58) Respondents counter that Article II “does not create a ‘charging' requirement separate from that of Article I” and that Article IV only sets forth the rule of specialty, a common provision in most extradition treaties. (Doc. 26 at 43-44) Respondents argue that the rule of specialty in Article IV does not hinge on whether formal charges have been filed. (Id. at 44)

Article II of the Extradition Treaty provides for extradition of an individual who has “been charged with or convicted of any of” the crimes enumerated in Article II. Article IV of the Extradition Treaty provides that “[n]o person surrendered shall be tried for any crime other than that for which he was surrendered without the consent of the surrendering High Contracting Party[.]” The language of Article IV therefore sets forth a provision compliant with the doctrine of specialty, which “prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite.” Quinn, 783 F.2d at 783.

Most notably, as the Extradition Court pointed out (Ex. Doc. 302 at 20), Article IV does not entirely prohibit Petitioner from being tried for additional crimes other than that for which Iraq seeks Petitioner's extradition. To the contrary, Article IV by its terms allows Petitioner to be tried for additional crimes so long as the United States consents. Article IV therefore only restricts Iraq's ability to try Petitioner for additional crimes insofar as the United States does not consent.

Moreover, Iraq has specified the charges for which it seeks to prosecute Petitioner. (Ex. Doc. 3-3 at 49-51 (redacted); see also Ex. Doc. 3-1 at 49-51 (unredacted)) Contrary to Petitioner's assertions, even in the absence of formal charges, the United States, as the surrendering country, can sufficiently determine whether an offense qualifies as an enumerated crime under the Extradition Treaty where Iraq has specified the offense for which it seeks to prosecute Petitioner. By their terms, Articles II and IV do not create any requirement that formal charges be filed, nor do Articles I or XI, as discussed above. Further, Petitioner's extradition for the offenses stated in the extradition request would not violate Article IV, given Iraq's clear statement of the offenses for which it seeks Petitioner's extradition. As such, the Court rejects Petitioner's argument that extradition would either violate Articles II and IV or render such articles surplusage.

In sum, the Extradition Treaty does not require the existence of formal charges for Petitioner to be “charged with” a crime under the Extradition Treaty. This Court should defer to Iraq's interpretation of its own law to find that Iraq seeks Petitioner's extradition for prosecution and has shown its intent to prosecute through the materials included in the extradition request. Accordingly, Petitioner's Claim 7 fails.

8. Claim 8

a. Parties' Arguments

In Claim 8, Petitioner argues that this Court should not certify his extradition because Petitioner will face abusive and arbitrary procedures in the Iraqi criminal justice system. (Doc. 1 at 61) Petitioner argues that an exception to the rule of non-inquiry exists where the extradited person would be subject to “procedures or punishment so antipathetic to a federal court's sense of decency as to require reexamination of [the general principle upholding extradition].” (Id. at 62) (quoting Mainero, 164 F.3d at 1210, and Gallina, 278 F.2d at 79). Petitioner provides a summary of the Iraqi criminal justice system, taken from the report of Professor Hamoudi and various other sources, to support his argument that his extradition should not be certified due to his potential treatment in Iraq. (Id. at 62-65) Petitioner further argues that because the Extradition Court did not dispute the observations of his expert witness regarding potential treatment in Iraq, “[t]his Court should accordingly treat these observations as established fact. See United States v. Robins, 967 F.2d 1387, 1389 (9th Cir. 1992) (relying on “undisputed expert testimony” of expert witness).” (Id. at 65)

Respondents assert that Petitioner's Claim 8 is non-cognizable and that this Court's limited role of review prohibits this Court from addressing this claim. (Doc. 26 at 64-69) Respondents urge that this Court “should not be the first to violate the rule of non-inquiry by applying a purported humanitarian exception” and that if this Court were to apply a humanitarian exception, this Court would go against “well-settled precedent reserving consideration of such claims for the Secretary of State.” (Id. at 64) Respondents argue that Professor Hamoudi's opinion was neither undisputed nor established, given that the Extradition Court excluded Professor Hamoudi's report insofar as the report discussed potential treatment of Petitioner in Iraq. (Id. at 64-65) Moreover, Respondents argue that this Court is not the proper forum to consider claims of treatment in Iraq, as the Secretary of State has not yet made a final decision regarding whether or not to extradite Petitioner. (Id. at 65-66) Although Petitioner argues for an exception to the rule of non-inquiry, Respondents argue that Petitioner's support for his argument relies solely on dicta from a Second Circuit case and point out that the Second Circuit has neither created such an exception nor favorably treated the dicta that Petitioner cites. (Id. at 67-68) Finally, Respondents argue that the Court should not apply a humanitarian exception because doing so would require the Court to “opine not on the legality of extradition[,]” which is the Court's function, “but on the wisdom or virtue of it.” (Id. at 68) In contrast to the Secretary of State, Respondents argue that the judiciary is “not accustomed to considering” and “not well-equipped to consider” such issues. (Id.)

In his reply, Petitioner reasserts his Petition argument that this Court should apply an exception to the rule of non-inquiry and asserts that “there is no bright-line prohibition of a federal court from considering the abusive, arbitrary nature of a discredited legal system that will fail to afford the Petitioner any semblance of due process.” (Doc. 32 at 1820)

b. Extradition Court's Ruling

Citing its own order from May 20, 2021 (Ex. Doc. 238), the Extradition Court stated that it would not consider Iraq's penal system nor determine whether Petitioner would be treated humanely, finding that considerations of the “fairness and efficacy of the Iraqi criminal justice system” were “reserved for the Secretary of State” (Ex. Doc. 302 at 21-22) (citations omitted). Adhering to the rule of non-inquiry, the Extradition Court declined to apply a humanitarian exception. (Id.) In doing so, the Extradition Court recognized that the Ninth Circuit has never established a humanitarian exception to extradition and declined to deviate from precedent in that regard. (Id.)

c. Applicable Law

The standard of review regarding Claim 9 is de novo. Vo, 447 F.3d at 1240. Extradition is a two-step process: “[i]f the extradition court determines that there is probable cause to extradite, it enters an order certifying extradition to the Secretary of State, who ultimately decides whether to surrender the individual to the requesting state.” Santos, 830 F.3d at 993. The two-step procedure of extradition:

reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch. Both institutional competence rationales and our constitutional structure, which places primary responsibility for foreign affairs in the executive branch, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 31922 [] (1936), support this division of labor.

United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997)).

The Ninth Circuit has “long adhered to the rule of non-inquiry-that it is the role of the Secretary of State, not the courts, to determine whether extradition should be denied on humanitarian grounds or on account of the treatment that the fugitive is likely to receive upon his return to the requesting state.” Prasoprat, 421 F.3d at 1016. This is because the Secretary of State's discretionary decision “may be based not only on ‘considerations individual to the person facing extradition' but ‘may be based on foreign policy considerations instead.'” Id. (quoting Lopez-Smith, 121 F.3d at 1326 (superseded by statute on other grounds)). The Secretary of State, who has “sole discretion” to determine whether a petitioner should be extradited, “may also decline to surrender the [petitioner] on any number of discretionary grounds, including but not limited to, humanitarian and foreign policy considerations.” Kin-Hong, 110 F.3d at 109.

The United States Supreme Court has recognized that “it is for the political branches, not the Judiciary, to assess practices in foreign countries.” Munaf v. Geren, 553 U.S. 674, 700-01 (2008). To that end, an application for writ of habeas corpus “has been held not to be a valid means of inquiry into the treatment the relator is anticipated to receive in the requesting state.” Id. at 700 (quoting M. Bassiouni, International Extradition: United States Law and Practice 921 (2007)).

d. Discussion

Despite Petitioner's assertion that the federal courts are not prohibited from assessing the Iraqi legal system (Doc. 32 at 19-20), the Ninth Circuit has “long adhered to the rule of non-inquiry.” Prasoprat, 421 F.3d at 1016. The Secretary of State, as part of the executive branch, is better situated than the judiciary to consider questions of foreign policy. This Court, then, is “bound by the existence of an extradition treaty to assume that the trial [in the requesting country] will be fair.” Glucksman v. Henkel, 221 U.S. 508, 512 (1911). Any consideration of foreign justice systems or of a petitioner's potential treatment in the requesting country would cause the Court to improperly “pass judgment on foreign justice systems and undermine the Government's ability to speak with one voice in this area.” Munaf, 553 U.S. at 702 (considering transfer of American citizens from detainee camp in Iraq to Iraqi criminal custody). Instead, the Secretary of State is “well-situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.” Id.

Despite precedent allocating to the Secretary of State consideration of potential treatment in the requesting country, Petitioner argues that this Court should apply an exception to the rule of non-inquiry because extradition to Iraq would cause him to be “‘subject to procedures or punishment so antipathetic to a federal court's sense of decency as to require reexamination of [the general principle upholding extradition].'” (Doc. 1 at 62) (quoting Mainero, 164 F.3d at 1210, and Gallina, 278 F.2d at 79). Petitioner points to Professor Hamoudi's report for details of the Iraqi criminal justice system. (Doc. 1 at 6265) However, the Extradition Court excluded Professor Hamoudi's report under the rule of non-inquiry insofar as the report discussed the Iraqi criminal justice system. (Ex. Doc. 238)

Moreover, Petitioner's legal support for a humanitarian exception is based on out-of-circuit dicta that is not followed in the Ninth Circuit. Although the Second Circuit in Gallina recognized that it could “imagine situations where the [petitioner], upon extradition, would be subject to procedures or punishment so antipathetic to a federal court's sense of decency as to require reexamination of the principle” of non-inquiry, neither the Second Circuit nor the Ninth Circuit has established an exception to the rule of non-inquiry for humanitarian concerns. 278 F.2d 77, 79 (2d Cir. 1960). The Second Circuit itself has stated that Gallina does not command a federal court to “reexamine the principle of exclusive executive discretion.” Sindona v. Grant, 619 F.2d 167, 175 (2d Cir. 1980). Further, although the Ninth Circuit has “cited the possibility of a humanitarian exception[,]” the Ninth Circuit has never adopted such an exception. Prasoprat, 421 F.3d at 1016; see Mainero, 164 F.3d at 1210 (recognizing Gallina's caveat but noting that the Ninth Circuit has never relied on it to create a humanitarian exception); Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir. 1983) (stating that the humanitarian exception theorized in Gallina “has yet to be employed in an extradition case”) (superseded by statute on other grounds). In keeping with the Ninth Circuit's repeated rejection of a humanitarian exception to extradition, this Court cannot find that such an exception bars Petitioner's extradition. Any determination of Petitioner's potential treatment in the Iraqi penal system is properly reserved for the Secretary of State, and Petitioner's Claim 8 fails.

9. Claim 9

a. Parties' Arguments

In Claim 9, Petitioner argues that his extradition would violate the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”). (Doc. 1 at 65-68) Petitioner argues that a court presiding over extradition proceedings “is not required to defer the issue of coercion or torture to the Secretary of State.” (Id. at 65) (citing Santos, 830 F.3d at 1005). Further, Petitioner argues that the Extradition Court should have considered Petitioner's risk of torture upon extradition, pursuant to the CAT, especially in light of likely torture from Iraqi public officials due to Petitioner's alleged involvement in AQI. (Id. at 67-68)

As with Petitioner's Claim 8, Respondents assert that Petitioner's Claim 9 is non-cognizable pursuant to the rule of non-inquiry. (Doc. 26 at 69-72) Although Respondents recognize the government's obligation to determine whether a fugitive would be subject to torture pursuant to the CAT, Respondents argue that the government's obligation does not circumvent the rule of non-inquiry. (Id. at 69) Because the CAT is not a self-executing treaty, Respondents assert that determinations regarding potential torture do not provide judicially enforceable rights and are not subject to judicial review in United States courts. (Id.) Respondents point out that the CAT is implemented by the Foreign Affairs Reform and Restructuring Act of 1998 (“the FARR Act”), which states that federal courts can only review CAT claims in the context of immigration. (Id. at 70) Accordingly, Respondents assert that Petitioner cannot rely on case law from the immigration context for his argument that this Court may review his claims under the CAT. (Id. at 71-72)

In reply, Petitioner states that:

[o]n further consideration of the issue, the Petitioner recognizes that the convention as implemented by regulations and addressed by the Ninth Circuit provides that the decision on whether the specter of torture will impact a person to be extradited is left to the Secretary of State. The Secretary, however, must make a finding on the matter of torture if the individual raises the issue following an extradition order. The individual is entitled to “strict compliance” by the Secretary with the procedure outlined in the regulations. The finding must be submitted to the court for its determination that the Secretary has followed the process provided by CAT. Trinidad YGarcia v. Thomas, 683 F.3d 952, 957 (9^th Cir. 2012) [...]

(Doc. 32 at 20-21)

b. Extradition Court's Ruling

The Extradition Court declined to consider Petitioner's arguments regarding the CAT because the Extradition Court determined that it was not the correct forum for such considerations. (Ex. Doc. 302 at 23) To the contrary, the Extradition Court found that the Secretary of State is the appropriate party to determine under the CAT whether a fugitive may be tortured, and that such a determination likely should be made after the Extradition Court's order certifying extradition. (Id.) (citing Trinidad y Garcia, 683 F.3d at 957). To that end, the Extradition Court concluded that consideration under the CAT was mandatory before extradition, but not before certification. (Id.)

c. Applicable Law

The standard of review regarding Claim 9 is de novo. Vo, 447 F.3d at 1240.

Article III of the CAT states that “[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 113; S. Treaty Doc. No. 100-20 (1988). The CAT is not a self-executing treaty. Trinidad y Garcia v. Thomas, 683 F.3d 952, 955 (9th Cir. 2012); see also Medellin, 552 U.S. at 505 n.2; 136 Cong. Rec. 36, 198 (1990); S. Exec. Rep. No. 101-30 at 12, 1718 (1990). Accordingly, the United States Congress implemented the CAT through the Foreign Affairs Reform and Restructuring Act of 1998 (“the FARR Act”). Id. at 955-56. Section 2242 of the FARR Act provides, in relevant part:

(a) POLICY.-It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States. []

(d) REVIEW AND CONSTRUCTION.-Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention [Against Torture] or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).

Pub. L. No. 105-277, § 2242(a), (d), 112 Stat. 2681-822 (1998).

Pursuant to the FARR Act § 2242(a), when a fugitive makes a CAT claim, the appropriate agency-the Department of State-must determine prior to extradition whether a fugitive may be tortured in the requesting country. Trinidad y Garcia, 683 F.3d at 956-57; Pub. L. No. 105-277, § 2242(a); see also 22 C.F.R. § 95.3. The Secretary of State, therefore, is the person who “must consider” a “torture claim and find it not ‘more likely than not' that the extraditee will face torture before extradition can occur.” Id. at 957. Although the Secretary of State must make such a determination prior to extradition, there is no indication that a Court may consider CAT claims prior to certification for extradition, and both “[t]he doctrine of separation of powers and the rule of non-inquiry block any inquiry into the substance of” the Secretary of State's determination. Id. The FARR Act therefore “provides a right to judicial review of conditions in the receiving country only in the immigration context” and “does not give extradition or military transferees [] a right to judicial review of conditions in the receiving country.” Omar v. McHugh, 646 F.3d 13, 17-18 (D.C. Cir. 2011); see also Munaf, 553 U.S. at 703 n.6 (FARR Act claims “may be limited to certain immigration proceedings”).

d. Discussion

In his reply, Petitioner acknowledges that consideration of the risk of torture under the CAT is reserved to the Secretary of State. (Doc. 32 at 20-21) In the event that Petitioner's reply is not construed as revoking Claim 9, the Court proceeds to address Petitioner's Claim 9 as argued in the Petition.

In his Petition, Petitioner first argues that the Extradition Court could consider the issue of torture or coercion in the context of whether a statement was obtained through torture or coercion. (Doc. 1 at 65) However, Petitioner's argument is more appropriately directed to the Extradition Court's determination of probable cause, as discussed supra. Whether a coerced statement constitutes explanatory evidence that undermines probable cause is not the same issue as whether Petitioner will be subject to torture in Iraq upon extradition. The Extradition Court's ability to consider coercion and torture in one context does not translate to the ability to consider coercion or torture in all contexts.

Petitioner cites several cases for his argument that this Court must consider the risk of torture if Petitioner is returned to Iraq. (Doc. 1 at 67-68) However, each of Petitioner's cases concerns removal proceedings through the Board of Immigration Appeals. See Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015); Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009); Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012); Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017). Extradition proceedings and precedent are separate and independent from immigration proceedings and precedent. See, e.g., Barapind v. Reno, 225 F.3d 1100, 1104-05 (9th Cir. 2000) (extradition “provides a separate and independent procedure from exclusion or removal proceedings initiated under the INA for the removal of an alien from the United States”). Immigration precedent does not apply to the question of whether this Court should consider claims under the CAT with respect to extradition.

Further, the Petition argues that the United States is obligated not to extradite him due to the risk that he will be tortured in Iraq. (Doc. 1 at 68) Citing United States v. Porumb, 420 F.Supp.3d 517 (W.D. La. 2019), Petitioner states that the magistrate judge in Porumb declined to extradite an individual who had been granted asylum in the United States. (Id.) Because Petitioner was admitted to the United States as a refugee, he argues that he is entitled to the same protection as the asylee in Porumb because asylees and refugees maintain “essentially ‘equivalent status'” under the Immigration and Nationality Act. (Id.) (quoting Robleto-Pastora v. Holder, 591 F.3d 1051, 1061 (9th Cir. 2010)). However, nothing in the Ninth Circuit's case law suggests that individuals admitted to the United States as refugees may not be extradited. See, e.g., In re Extradition of Handanovic, 829 F.Supp.2d 979 (D. Or. 2011) (certifying extradition of a Bosnian refugee); In re Extradition of Velasquez Pedroza, 2020 WL 549715, at *5-6 (S.D. Cal. Feb. 4, 2020) (certifying extradition of a Guatemalan refugee to Finland and finding that the prohibition on removal of asylees does not extend to refugees not granted asylum).

In sum, as Petitioner recognizes in his reply, Petitioner's claims under the CAT are for the Secretary of State's consideration after judicial certification of extradition. Petitioner's Claim 9 fails.

10. Claim 10

a. Parties' Arguments

In Claim 10, Petitioner argues that because he is a United States citizen, he cannot not be extradited under the Extradition Treaty. (Doc. 1 at 69-73) Article VIII of the Extradition Treaty states that “neither of the High contracting Parties shall be bound to deliver up its own citizens.” (Id. at 69; Ex. Doc. 3-3 at 11) Citing Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936), in which the United States Supreme Court considered a treaty with language nearly identical to the Extradition Treaty here, Petitioner argues that the Extradition Treaty's language does not give the United States discretion to extradite citizens. (Id. at 69-70) Petitioner further asserts that 18 U.S.C. § 3196 does not permit extradition because (1) the requirements of the Extradition Treaty have not been met, and (2) as held in Gouveia v. Vokes, 800 F.Supp. 241 (E.D. Pa. 1992), Section 3196 violates the separation of powers by giving Congress power that should be exercised by the President. (Id. at 71-72) Petitioner acknowledges that the Ninth Circuit rejected Gouveia's reasoning in United States v. Knotek, 925 F.3d 1118 (9th Cir. 2019), but Petitioner points out that the treaty in Knotek was amended after ratification, unlike the Extradition Treaty here. (Id. at 72) Moreover, Petitioner argues that Knotek was wrongly decided and that the United States therefore does not have the power to extradite its own citizens. (Id.) In his reply, Petitioner reasserts his Petition arguments. (Doc. 32 at 21-23)

Respondents assert that the United States may extradite its own citizens due to the enactment of 18 U.S.C. § 3196, which gives the Department of State discretion to extradite United States citizens. (Doc. 26 at 50-53) Respondents acknowledge that the language of the Extradition Treaty at issue here is the same as in Knotek and Valentine, but Respondents assert that Section 3196 remedies any prohibition against extradition that could result from the Extradition Treaty's language. (Id. at 50-51) Respondents urge the Court to reject Petitioner's arguments that Section 3196 does not apply because (1) Petitioner had ample notice of the applicability of Section 3196, (2) Section 3196 does not provide an independent basis to deny extradition, and (3) Section 3196 is constitutional. (Id. at 51-52) Moreover, Respondents assert that the court in Knotek court “followed a number of other decisions involving never-amended extradition treaties pre-dating the U.S.-Iraq Treaty (and Section 3196).” (Id. at 52-53)

b. Extradition Court's Ruling

The Extradition Court rejected Petitioner's argument that Article VIII of the Extradition Treaty prevents the extradition of a United States citizen. (Ex. Doc. 302 at 2325) As in Knotek, the Extradition Court determined that Section 3196 “filled a void between what the United States was permitted to do versus what it was prohibited from doing under the terms of” the Extradition Treaty. (Id. at 24) (emphasis in original and internal quotation omitted) Petitioner argued that he had insufficient notice that Section 3196 would apply, but the Extradition Court observed that Petitioner raised an issue regarding Section 3196 himself in previous briefing. (Id.) Moreover, the Extradition Court recognized that Petitioner was not entitled to the same rights as a defendant in a criminal proceeding, such as typical notice, confrontation, and compulsory process. (Id.) Although Petitioner argued that the Extradition Treaty was ratified prior to the enactment of Section 3196 and that Section 3196 did not apply retroactively, the Extradition Court noted that the court in Knotek had followed a Sixth Circuit case in which Section 3196 was applied to a treaty ratified prior to the enactment of Section 3196. (Id. at 25) (citing Basic v. Steck, 819 F.3d 897, 899-900 (6th Cir. 2016)).

c. Applicable Law

The standard of review regarding Claim 10 is de novo. Vo, 447 F.3d at 1240.

Article VIII of the Extradition Treaty states: “Under the stipulations of this Treaty, neither of the High Contracting Parties shall be bound to deliver up its own citizens.” (Ex. Doc. 3-3 at 11 (redacted); see also Ex. Doc. 3-1 at 11 (unredacted))

In Knotek, the Ninth Circuit considered a treaty between the Czech Republic and the United States with the same language as Article VIII of the Extradition Treaty here. 925 F.3d at 1118. Although the Czech-U.S. treaty alone would not have provided authority for extradition, the Ninth Circuit determined that 18 U.S.C. § 3196 “fills a void” by granting the United States discretion to extradite where a treaty does not set forth an obligation to do so. Id. at 1126-27. Section 3196 provides that:

[i]f the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.

18 U.S.C. § 3196.

d. Discussion

In arguing that Section 3196 is inapplicable here, Petitioner first argues that the terms of the Extradition Treaty have not been met, specifically that (1) the charged offenses are non-extraditable political offenses, (2) Petitioner has not been charged with or convicted of any of the enumerated crimes in the Extradition Treaty, (3) Iraq has not produced “required documentation,” and (4) Petitioner is exempt from punishment for murder. (Doc. 1 at 70-71) As discussed in Sections III(B)(5), (7), and (11), supra and infra, each of these claims fails, and the terms of the Extradition Treaty have been properly met.

Petitioner further argues that under principles of contract law, Iraq has “breached its implied duty of good faith and fair dealing, by ratifying and then retaining in its constitution a provision affirmatively barring the extradition of its citizens” under the Extradition Treaty despite the United States' willingness to extradite its own citizens. (Id. at 71) However, the plain language of Article VIII of the Extradition Treaty states that “neither of the High Contracting Parties shall be bound to deliver up its own citizens.” Such language is discretionary for each contracting party. See, e.g., Knotek, 925 F.3d at 1126-27 (addressing identical language in a treaty and determining that such language does not obligate extradition). Notably, the United States Supreme Court considered a similar argument to Petitioner's in Charlton, in which a petitioner faced extradition to Italy. 229 U.S. 447. The Supreme Court adopted the Department of State's view that “since extradition treaties need not be reciprocal, even in the matter of the surrendering of citizens, it would seem entirely sound to consider ourselves as bound to surrender our citizens to Italy, even though Italy should not, by reason of the provisions of her municipal law, be able to surrender its citizens to us.” Charlton, 229 U.S. at 476. Under the same principles here, Iraq's alleged inability to extradite its own citizens does not preclude the United States from extraditing its citizens to Iraq. See also United States v. Perilla Umbarila, 562 F.Supp.3d 729, 740-41 (C.D. Cal. 2022) (Colombia's denial of U.S. extradition requests did not invalidate treaty, and any concerns of one-sided obligations would be more properly considered by State Department, not judiciary).

Petitioner next argues that the Ninth Circuit incorrectly decided Knotek and urges this Court to apply the reasoning of the Eastern District of Pennsylvania in Gouveia v. Vokes, 800 F.Supp. 241 (E.D. Pa. 1992). (Doc. 1 at 71-72; Doc. 32 at 21-22) Petitioner asserts that the court in Gouveia found Section 3196 to violate Article II, section 2 of the United States Constitution because Section 3196 unconstitutionally gave Congress unilateral treaty power, when such power should have been exercised by the President with Senate approval. (Doc. 1 at 71-72) However, as Respondents point out (Doc. 26 at 52, n.31), Gouveia is not binding on this Court, and the Ninth Circuit rejected the reasoning of Gouveia in Knotek. See Knotek, 925 F.3d at 1126-28. Petitioner acknowledges the Ninth Circuit's disagreement with Gouveia but argues nevertheless that Knotek is not controlling because the treaty in Knotek was amended, unlike the Extradition Treaty here. (Doc. 1 at 72; Doc. 32 at 22) Petitioner asserts that the United States and Iraq had the opportunity to alter the language of the Extradition Treaty, as had occurred with various other treaties, and argues that the parties' failure to alter the Extradition Treaty's language indicates the parties' intent to prohibit the extradition of United States citizens. (Doc. 1 at 72)

In Knotek, the Ninth Circuit expressly rejected Gouveia's holding that Section 3196 allowed unconstitutional congressional action. 925 F.3d at 1128. Instead, the Ninth Circuit considered the numerous constitutional challenges to Section 3196 and found that aside from Gouveia, all other courts addressing the constitutionality of Section 3196 had ordered extradition pursuant to Section 3196. Id. at 1126 (collecting cases). In line with these other courts, the Ninth Circuit concluded that Section 3196 was “a permissible act of Congress because section 3196 does not amend or conflict with the [Czech-United States] Treaty and Congress has authority to adopt domestic laws regulating extradition.” Id. The Ninth Circuit determined that Section 3196 did not conflict with the Czech-United States treaty because the United States retained discretion to extradite its own citizens. Id. at 1126-27. The language at issue in Knotek was identical to the language at issue in the Extradition Treaty here, guiding the conclusion that Section 3196 properly and constitutionally fills the void in the Extradition Treaty's language.

Although the petitioner in Knotek also argued that the failure of the treaty's parties to amend a term regarding extradition of citizens evidenced the parties' intent to prohibit extradition of citizens, the Ninth Circuit rejected this argument. Id. at 1128. Instead, the Ninth Circuit determined that subsequent amendments to the treaty in Knotek, postratification of Section 3196, were not concerned with extradition of citizens and therefore did not prohibit the application of Section 3196. Id. The Ninth Circuit stated that it would have only reached a different conclusion if the parties to the treaty in Knotek “had explicitly amended [the term governing extradition of citizens] to prohibit the extradition of their own citizens.” Id. Where the treaty contained no explicit prohibition against extradition, Section 3196 continued to apply. Id.

Because the amendments in Knotek did not concern the extradition of citizens, Petitioner's argument that amendments to the treaty in Knotek distinguish Knotek from this case is not persuasive. Moreover, the Ninth Circuit rejected the argument that the parties' failure to amend language regarding extradition of citizens demonstrates the parties' intent to prohibit extradition of citizens. Knotek, 925 F.3d at 1128. Given the Ninth Circuit's holdings in Knotek, Petitioner lacks support for his conclusion that the Extradition Treaty's lack of amendments post-ratification of Section 3196 prohibits application of Knotek.

Although the Extradition Treaty lacks language mandating extradition of the parties' own citizens, Section 3196 provides the necessary, constitutional discretion to extradite a United States citizen and fills the gap in the Extradition Treaty's language. To the extent that Petitioner maintains that Knotek was wrongly decided and that Gouveia sets forth the correct reasoning regarding extradition of United States citizens, the Ninth Circuit has already addressed and rejected Gouveia. Stare decisis cautions that this Court should not question the Ninth Circuit's decision in Knotek. Therefore, Petitioner's Claim 10 fails.

11. Claim 11

a. Parties' Arguments

In Claim 11, Petitioner acknowledges that premeditated murder is an enumerated, extraditable crime under the Extradition Treaty, but Petitioner argues that he is exempt from punishment for premeditated murders in Iraq in 2006, which prevents his extradition under the Extradition Treaty. (Doc. 1 at 73-74) Petitioner argues that imposition of the death penalty would violate ex post facto rules of the Iraqi constitution, as Iraq had “no procedural mechanism for implementing the death penalty” at the time of the two premeditated murder offenses delineated in the Extradition Complaint. (Id.) Therefore, Petitioner argues that he is not extraditable under the terms of Article V of the Extradition Treaty, pursuant to which the United States may not surrender a person “exempt from prosecution or punishment for the crime for which the surrender is asked.” (Id. at 73-74) In reply, Petitioner reasserts his Petition arguments. (Doc. 32 at 23-24) Seeking to distinguish Prasoprat v. Benov, 421 F.3d 1009 (9th Cir. 2005), a case relied upon by the Extradition Court in excluding Petitioner's expert report regarding the application of the death penalty, Petitioner emphasizes that he is not seeking discovery in Claim 12, but rather is arguing that Article V of the Extradition Treaty applies and he is not subject to extradition. (Id.)

Respondents argue that Petitioner is not exempt from punishment for premeditated murder in Iraq committed in 2006 and that Petitioner's argument for exemption contradicts Iraq's interpretation of its laws. (Doc. 26 at 48-50) Respondents assert that even if the death penalty was suspended in Iraq at the time of the alleged crimes, Petitioner would be subject to other punishment, such as life imprisonment, under Iraqi law. (Id.) Accordingly, Respondents argue that Article V of the Extradition Treaty does not bar Petitioner's extradition. (Id. at 48-50)

b. Extradition Court's Ruling

The Extradition Court determined that analysis of Iraq's application of the death penalty would violate the rule of non-inquiry. (Ex. Doc. 302 at 22) Further, the Extradition Court determined that Provisional Authority Order Number 7, Section 3(1) stated that life imprisonment or a lesser penalty could be substituted for the death penalty during the suspension of capital punishment in Iraq, and, thus, the Extradition Court was not persuaded that Petitioner is exempt from punishment under Iraqi law and not extraditable on that basis. (Id. at 22-23, citing Ex. Doc. 200-3 at 62 and Ex. Doc. 254-2 at 4-5)

c. Applicable Law

The standard of review regarding Claim 11 is de novo. Vo, 447 F.3d at 1240.

Article V of the Extradition Treaty provides:

[a] fugitive criminal shall not be surrendered under the provisions of this Treaty, when from lapse of time or other lawful cause, according to the laws of the place within the jurisdiction of which the crime was committed, the criminal is exempt from prosecution or punishment for the crime for which

the surrender is asked.

(Ex. Doc. 3-3 at 11 (redacted); see also Ex. Doc. 3-1 at 11 (unredacted))

According to supplemental extradition documents submitted in the Extradition Court, during periods in which the death penalty was suspended for death penalty eligible crimes, a lesser punishment such as life in prison is applicable. (Ex. Doc. 254-2 at 4)

d. Discussion

Although Petitioner points out that the extradition packet includes documents from 2019 identifying the maximum penalty as death (Doc 1 at 73; Doc. 32 at 23; see Ex. Doc. 3-3 at 51), Judge Jabbar Hussain ‘Alaywi's subsequent review in 2021 recognized that Petitioner may not be subject to the death penalty and would be subject to a lesser penalty such as life imprisonment if found to have committed premeditated murder (Ex. Doc. 2542 at 4-5). Insofar as Petitioner's claim requests a determination by this Court of the applicability and use of the death penalty in Iraq, the request is beyond the purview of this Court. See, e.g., Emami, 834 F.2d at 1449 (declining to delve into interpretations of German law).³²

32 The Extradition Court was correct in its ruling that “[t]o the extent Relator's argument concerns how Iraq imposes the death penalty, that argument is foreclosed by the rule of non-inquiry.” (Ex. Doc. 302 at 22) Further, if an “offense for which extradition is sought is punishable by death, the question of whether to refuse extradition on that basis is within the authority of the executive branch, not the judicial branch.” Prasoprat, 421 F.3d at 1015.

Upon review, Respondents are correct that Petitioner's “contention that he is ‘exempt from punishment' is not supported by the record or [Petitioner]'s own expert's analysis, and in any event, is contrary to the Iraqi government's interpretation of its law.” (Doc. 26 at 48) Even if Petitioner is not subject to the death penalty if found to have committed premeditated murder, he is not “exempt from prosecution or punishment for the crime for which the surrender is asked” under Article V of the Extradition Treaty. (Ex. Doc. 3-3 at 11) Rather, a lesser penalty, such as life imprisonment, could be imposed. (Ex. Doc. 254-2 at 4)

Accordingly, Petitioner's Claim 11 that he is not subject to punishment in Iraq for the Extradition Complaint's premeditated murder offenses, and therefore that he is not extraditable under Article V of the Extradition Treaty, fails.

12. Claim 12

a. Parties' Arguments

Claim 12 argues that the Extradition Treaty has been nullified due to the Gulf War and the Iraq War, both fought between the parties following the Extradition Treaty's ratification. (Doc. 1 at 74-77)

Respondents assert that the Extradition Treaty was in force at all relevant times and remains in force. (Doc. 26 at 20-23) Respondents argue that Petitioner “fails to satisfy his burden of demonstrating otherwise for three independent reasons: (1) [Petitioner's position] is contrary to the action of the two parties to the Treaty, which is conclusive of the Treaty's continuing validity under Supreme Court precedent; (2) [Petitioner's position] is contrary to the view of the U.S. Department of State that the Treaty currently remains in force; and (3) [Petitioner's position] is premised on a misapplication of the relevant case law.” (Id. at 20-21)

In reply, Petitioner states that:

[t]he government has cited cases that recognize the parties' conduct with respect to treaties between them, including the implementation of foreign policy, which covers treaties. Accordingly, the Petitioner recognizes that the treaty of extradition was in effect. However, he does not waive any of his arguments concerning the validity of its provisions and the method in which it has been used in his case.

(Doc. 32 at 24)

b. Extradition Court's Ruling

Relying on the warning in Then, 92 F.3d at 854, that a court should not “easily disregard the determination of the Executive Branch” as to whether a treaty remains in effect, the Extradition Court determined that the Extradition Treaty remained in force due to the conduct of the parties, declarations by representatives of the United States Department of State and the Iraqi Ministry of Foreign Affairs, and the inclusion of the Treaty on the Department of State's Treaties in Force publication. (Ex. Doc. 302 at 3) In doing so, the Extradition Court stated that “other courts have observed ‘it is extremely doubtful that war ipso facto abrogates a treaty of extradition' and concluded that ‘controlling importance' must be given to how governments have acted in relation to a treaty. Argento v. Horn, 241 F.3d 258, 262 (6th Cir. 1957) (quoting Terlinden v. Ames, 184 U.S. 270, 285 (1902)).” (Id.)

c. Applicable Law

The standard of review regarding Claim 12 is de novo. Vo, 447 F.3d at 1240.

The Extradition Treaty was signed on June 7, 1934, and ratified in 1936. (Ex. Doc. 3-3 at 7 (redacted); see also Ex. Doc. 3-1 at 7 (unredacted)) In determining whether a treaty between countries is still in force, “governmental action in respect to [the treaty] must be regarded as of controlling importance.” Terlinden v. Ames, 184 U.S. 270, 285 (1902). Further, courts determining whether an extradition treaty is in force have deferred to the Department of State's view. See, e.g., Then, 92 F.3d at 854 (deferring to the State Department's view that a treaty between the U.S. and Singapore was in force). A reviewing court, with a limited role and scope of review, should defer to the judgment of the Executive Branch on such an issue, as “foreign policy [is] the province and responsibility of the Executive” under Article II of the United States Constitution. Haig v. Agee, 453 U.S. 280, 293-94 (1981); see also Department of Navy v. Egan, 484 U.S. 518, 529-30 (1988). Finally, war between parties to a treaty does not inherently suspend or terminate a treaty signed prior to the outbreak of war. See Karnuth v. United States, 279 U.S. 231, 236 (1929); Clark v. Allen, 331 U.S. 503, 508 (1947).

d. Discussion

In his reply, Petitioner acknowledges that the Extradition Treaty is in effect. (Doc. 32 at 24) However, in the event that Petitioner's reply is not construed as revoking Claim 12, the Court proceeds to address Petitioner's Claim 12 as argued in the Petition.

Governmental action supports that the parties to the Extradition Treaty consider the Treaty as remaining in force despite the two wars referenced by Petitioner. In a declaration executed on May 10, 2021, Tom Heinemann, an attorney adviser for the United States Department of State, asserted that Iraq and the United States have previously acted pursuant to the Extradition Treaty in 2014 and 2018 and that neither party has acted to terminate or suspend the Treaty. (Doc. 228-1 at 3-4) Moreover, Iraq requested Petitioner's extradition pursuant to the Treaty in 2019 (Ex. Doc. 3-1 at 6 (unredacted); Ex. Doc. 3-3 at 6 (redacted)), and the United States subsequently filed an Extradition Complaint pursuant to Iraq's request in 2020 (Ex. Doc. 3), well after the wars that Petitioner identifies: the Gulf War (fought from 1990-1991) and the Iraq War (fought from 2003-2011) (Doc. 1 at 74).

As for the Department of State's official view, Tom Heinemann declared that the Department of State views the Extradition Treaty as remaining in force. (Doc. 228-1 at 3) Moreover, the most recent edition of Treaties in Force, a publication of the Department of State, includes the Extradition Treaty. (Id. at 5-6); Treaties in Force 215 (2020). Treaties in Force “lists treaties and other international agreements of the United States on record in the Department of State on January 1, 2020, which had not expired by their own terms or which had not been denounced by the parties, replaced, superseded by other agreements, or otherwise definitely terminated.” Id. at i.

In addition, Tom Heinemann declared that, according to the Department of State, wars between the United States and Iraq have not annulled the Extradition Treaty. (Doc. 228-1 at 4) Tom Heinemann stated that the Treaty may only be terminated with notice, pursuant to Article XIII of the Treaty, and that neither party has issued notice of termination. (Id. at 3) Further, neither party has terminated the Treaty pursuant to international law such as the Vienna Convention on the Law of Treaties, nor does the Vienna Convention or other international law provide that a treaty automatically terminates upon war. (Id. at 3-4)

Given the conduct of the parties to the Extradition Treaty, the views of the United States Department of State, and the failure of wars between the parties to automatically terminate the Extradition Treaty, the Extradition Treaty remained in force and effect at all times relevant to the Extradition Complaint. Accordingly, Petitioner's Claim 12 fails.

V. CONCLUSION

For the reasons set forth above, it is recommended that the United States Attorney General and the United States Secretary of State be dismissed as Respondents from this matter for lack of personal jurisdiction. It is further recommended that the named United States Marshal for the District of Arizona be substituted to reflect Van Bayless as the Acting United States Marshal for the District of Arizona.

For the reasons set forth above, it is also recommended that the Petition be denied and that the Clerk of Court be directed to terminate this matter. In short, competent evidence supports the Extradition Court's probable cause decision, the Extradition Court did not violate Petitioner's due process rights during the extradition proceedings, the Extradition Treaty remains in force, the terms of the Extradition Treaty have been met, and Petitioner has not demonstrated that any exception to extradition warrants vacating the Extradition Court's Order Certifying Extradition.

Accordingly, IT IS RECOMMENDED that Respondents United States Attorney General and the United States Secretary of State be dismissed.

IT IS FURTHER RECOMMENDED that Van Bayless, the Acting United States Marshal for the District of Arizona, be substituted in place of currently named and now retired United States Marshal David Gonzales.

IT IS FURTHER RECOMMENDED that Petitioner Ali Yousif Ahmed Al-Nouri's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) be denied and that the Clerk of Court be directed to terminate this matter.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.