Extradition case tests how U.S. will lead on torture

There are different ways to be soft on torture. Here’s one: letting a court accept evidence based on torture. That’s not supposed to happen in the United States, but it might if a federal appeals court rules the wrong way.

The case, Jose Luis Munoz Santos vs. Linda R. Thomas, relies on the testimony of witnesses who say they were tortured by Mexican authorities. The allegations are plausible. Torture by Mexican police is a significant problem, as I documented in a report to the United Nations Human Rights Council earlier this year. According to the State Department’s report on Mexico, torture was frequent when the interrogation of these witnesses took place. If extradited, Munoz might face torture himself in violation of yet another human rights standard: the prohibition against returning a person to a country where he would face torture.

As I have emphasized in a recent report, the U.N. Convention Against Torture — which was signed by the Reagan administration — prohibits the use of statements obtained through torture in any court proceedings. In order to prevent such use, the United States has the obligation to investigate allegations of torture. If a well-founded allegation is made that evidence was obtained through torture, it must be excluded from the extradition proceeding. The allegation must at least be investigated before the evidence is accepted. If Mexico cannot prove that the statements were uncoerced, the U.S. court must reject the extradition request.

The backdrop to the pending court decision is the U.S. government’s own use of torture after 9/11, which did serious damage both to human beings and the country’s reputation as one that respects human rights and the rule of law. President Obama’s executive order of 2009 prohibiting torture was a welcome change, though the U.S. government is still under an obligation to investigate, prosecute and punish all those responsible for each act of torture.

Last year, the U.S. government began to face up to this dark chapter when the Senate Select Committee on Intelligence released the findings of its investigation into the CIA’s “enhanced interrogation” program. Revealing that torture was both more widespread and brutal than the CIA had led Americans to believe, the Senate report was a landmark achievement in oversight and transparency. This was a major step toward a public reckoning and recovery of some measure of moral authority.

A court ruling that sends Munoz back to Mexico without addressing the allegations of torture would be a big step in exactly the wrong direction. The case may not be generating major headlines, but believe me, other governments — both those that oppose torture and those that practice it — are watching. If the United States allows his extradition, it will violate the prohibition on using evidence produced by torture, and this will lead to wider acceptance of violations of the Convention Against Torture around the world.

The effect of this ruling by the U.S. Court of Appeals for the 9th Circuit will be felt far and wide. For some, it will be felt in physical and emotional pain. This much is certain: The U.S. government is a global leader on torture. Whether it is anti-torture or pro-torture leader is the question.