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Publication Date

2009

Abstract

This Note discusses the terrorist detainee transfer process and examines the level of deference courts should give the Executive Branch in determining whether a detainee could be tortured in a transferee country. In Munaf v. Geren, the Supreme Court suggested that the judicial branch is ill- suited to question the Executive's transfer determinations. Nevertheless, it did not definitively preclude judicial review of transfer determinations under the Convention Against Torture and left open the possibility of stringent court scrutiny in a "more extreme case." This Note proposes a case-by-case balancing test to determine the appropriate level of Executive deference. Courts should weigh the clarity and specificity of the detainee's evidence of torture against the secrecy and sensitivity of the government's negotiations. Full deference to the Executive leads to unreliable torture determinations and harms detainee rights, while excessive judicial review saps Executive energy and impedes effective foreign policy. This balancing approach minimizes potential harm to Executive power, while protecting detainees' right to be free from torture. Determining the proper level of Executive deference and establishing legal, humane, and efficient transfer procedures is essential to effectively shutting down the U.S. detention facility in Guantanamo and other military prisons

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