[00:00:05] Speaker 03:
Good morning, your honors, and may it please the court.

[00:00:07] Speaker 03:
My name is Jeremy Baron, and I'm here on behalf of Ms.

[00:00:10] Speaker 03:
Srdaj.

[00:00:11] Speaker 03:
If I could, I'd like to save five minutes for rebuttal, and I'll keep track of the time.

[00:00:15] Speaker 03:
Finally, unless the panel directs me otherwise, I intend to focus my argument today on the issue from the supplemental brief.

[00:00:22] Speaker 03:
When a petitioner raises a torture concern,

[00:00:24] Speaker 03:
In an extradition case, the petitioner has a procedural due process right to ensure that the Secretary of State strictly complies with the rules and regulations under the Convention Against Torture before authorizing the extradition.

[00:00:37] Speaker 03:
Here, the government failed to demonstrate its compliance with those rules.

[00:00:41] Speaker 03:
We're therefore asking the court to reverse and remand with instructions to grant the writ.

[00:00:46] Speaker 03:
Now when this issue arises, it is exceedingly easy for the government to demonstrate its compliance.

[00:00:51] Speaker 03:
The government simply needs to submit a declaration signed by the secretary or a senior official properly designated by the secretary that demonstrates the government's compliance.

[00:01:01] Speaker 04:
So who does the senior official in your view have to be?

[00:01:04] Speaker 04:
In this case, the deputy secretary.

[00:01:06] Speaker 04:
So does the regulation or the statute say that there needs to be a declaration or an affidavit signed by a deputy secretary or above?

[00:01:19] Speaker 04:
The regulation does not say that.

[00:01:21] Speaker 04:
Does our case in Trinidad specifically say that there needs to be an affidavit or a declaration or testimony by a deputy secretary or above?

[00:01:34] Speaker 03:
The phrase in Trinidad does not specifically say deputy secretary.

[00:01:39] Speaker 03:
the secretary or a senior official properly designated by the secretary.

[00:01:42] Speaker 03:
So that's the language from Trinidad.

[00:01:45] Speaker 02:
What we're saying is... If I could just stop you right there.

[00:01:48] Speaker 02:
Trinidad does not say that it has to be a declaration that the government files to meet its burden by my read, but it does say if the district court receives such a declaration, it shall determine whether it has been signed by the secretary or a senior official properly designated by the secretary.

[00:02:07] Speaker 02:
So my view, and I'm only one of three, is that that's not, a declaration's not required, but where one is offered, where the government chooses to meet its burden that way, our en banc court directed the court shall determine whether it's been signed by, in this case I guess it would be Secretary Blinken or his designee.

[00:02:27] Speaker 03:
Deputy Secretary, Nuland is the one who authorized the extradition, so presumably from her, or the secretary herself.

[00:02:32] Speaker 02:
Whoever the secretary is at the moment, right, and we don't have that.

[00:02:35] Speaker 03:
But respectfully your honor I do disagree with that interpretation of Trinidad Trinidad specifically remands to the district court I'm quoting if my notes are accurate from the opinion we remand to the district court so that the secretary may augment the record by providing a declaration that she has complied but that's that's what I'm saying what about what I just said do you disagree with.

[00:02:56] Speaker 03:
Well, Trinidad is remanding for the declaration.

[00:02:59] Speaker 02:
Exactly.

[00:03:00] Speaker 03:
And then on remand, if the district court receives.

[00:03:03] Speaker 02:
Well, here's what I said.

[00:03:04] Speaker 02:
And I want you to listen, if I could, to make sure that I understand where you and I are disagreeing.

[00:03:10] Speaker 02:
My read of Trinidad is that it doesn't require a declaration.

[00:03:13] Speaker 02:
The government could meet its burden by filing a declaration.

[00:03:18] Speaker 02:
And this case, Trinidad E. Garcia says that if such a declaration is received,

[00:03:24] Speaker 02:
the district court shall determine whether it's signed in the way we have just been discussing.

[00:03:28] Speaker 02:
What about that do you disagree with?

[00:03:29] Speaker 03:
The way to demonstrate compliance is a declaration under Trinidad.

[00:03:34] Speaker 02:
You think that's the only way?

[00:03:36] Speaker 03:
Yes, that's the way that Trinidad.

[00:03:38] Speaker 02:
Say that.

[00:03:39] Speaker 03:
It says, in absence of any evidence that the secretary has complied with the regulation, we lack sufficient basis in the record to review the district court's order.

[00:03:47] Speaker 03:
granting the petitioners release we remand to the district court so that the secretary augment the record by providing a declaration and so the way I perhaps my interpretation is different than your honors but my understanding is that Trinidad is directing district courts in future cases the way for the secretary of state or the deputy secretary to demonstrate compliance

[00:04:06] Speaker 03:
is through a declaration.

[00:04:07] Speaker 03:
Now, perhaps there are other ways.

[00:04:10] Speaker 03:
Perhaps the Secretary wants to come into court.

[00:04:11] Speaker 02:
I guess what I would agree with you is that a way, after Trinidad, a way to demonstrate compliance is a declaration properly executed.

[00:04:19] Speaker 02:
I don't know where it says that that's the only way.

[00:04:21] Speaker 03:
And perhaps there are other ways that the government could attempt to meet its burden, such as testimony in court.

[00:04:25] Speaker 03:
But here, the government has attempted to meet its burden through a declaration as Trinidad envisions.

[00:04:31] Speaker 03:
And so if the government is attempting to meet its burden through a declaration, Trinidad instructs the district courts to determine whether there is a proper signatory.

[00:04:39] Speaker 04:
So I'm having trouble understanding why, given the language of Trinidad and the language of the regulation and the statute,

[00:04:50] Speaker 04:
why, if I'm pronouncing the name correctly, Mr. Heineman's declaration doesn't comply.

[00:04:55] Speaker 04:
He says there, I'm the official responsible for managing the department's responsibilities in the case.

[00:05:03] Speaker 04:
I can confirm that the decision to surrender has complied with the obligations.

[00:05:09] Speaker 04:
And he also writes that the acting deputy secretary, Newland, authorized the extradition.

[00:05:17] Speaker 04:
Uh, I don't understand why that doesn't, why that doesn't comply where you have somebody who is managing the case according to their declaration here.

[00:05:29] Speaker 04:
And they say the secretary knew and authorized it.

[00:05:34] Speaker 04:
And I can confirm that all the procedures were followed.

[00:05:39] Speaker 04:
Why isn't, why isn't that enough here?

[00:05:41] Speaker 04:
Why, um, do we.

[00:05:43] Speaker 04:
want to sort of manage how the Department of State conducts its operations.

[00:05:51] Speaker 03:
So our position is it needs to be from the decision maker.

[00:05:54] Speaker 03:
And there's multiple points I would make to back that up.

[00:05:56] Speaker 03:
First of all, there's some common sense to it.

[00:05:58] Speaker 03:
The point of Trinidad is to make sure that the secretary or the deputy secretary is making a bona fide judgment that the risk of torture is low.

[00:06:06] Speaker 04:
Respectfully, to me, it's sort of the opposite of common sense.

[00:06:10] Speaker 04:
Common sense is,

[00:06:11] Speaker 04:
Secretary Blinken and his designees manage their department and that the Article III courts don't manage the Department of State.

[00:06:22] Speaker 04:
And common sense is when you have somebody like the affiant or the declarant come up with a declaration like this, we should respect it.

[00:06:31] Speaker 03:
But the basis for Mr. Heineman's knowledge is unclear.

[00:06:34] Speaker 02:
Council, why would we start with common sense when we have an unblocked decision?

[00:06:37] Speaker 03:
Yes, and the en banc decision says secretary or a senior official properly designated.

[00:06:42] Speaker 03:
There's no indication in Mr. Heineman's declaration that he.

[00:06:45] Speaker 01:
Well, I think what we were getting at, since I was on that court, what we were getting at is we wanted someone with personal knowledge to say that the procedures were complied with before we accepted their representation, that there was a low, that the person would not be tortured upon

[00:07:06] Speaker 01:
extradition to the country that the Department of State was trying to extradite them to.

[00:07:14] Speaker 01:
So, you know, I think, I don't know whether Tom Heineman has personal knowledge that the procedures, the obligations have been complied with, and that was a problem

[00:07:35] Speaker 01:
And the debate in Trinidad was, you know, we have very little power to review a document that extraditing someone that's issued by the Secretary of State, very little scope is very limited.

[00:07:54] Speaker 01:
But the minimum is that we must be assured that the proper procedures were complied with.

[00:08:02] Speaker 01:
So it's a question of

[00:08:04] Speaker 01:
Is this person able to assure us of that?

[00:08:08] Speaker 01:
I don't know if there's enough here.

[00:08:10] Speaker 01:
I guess that's a question for you.

[00:08:13] Speaker 01:
How do we know?

[00:08:14] Speaker 03:
I agree with that, Your Honor.

[00:08:16] Speaker 01:
Again, our position is it should be the decision-maker, but even if it could be another official— It could be another person with firsthand knowledge who's able to say, yes, we comply with these decisions.

[00:08:25] Speaker 03:
And this would be a very different case if Mr. Heineman's declaration said, I was an integral part of the decision-making process.

[00:08:32] Speaker 03:
I sat in on meetings with the deputy secretary, et cetera, et cetera.

[00:08:36] Speaker 03:
If there was some content in the declaration that

[00:08:38] Speaker 03:
may clear the basis for his knowledge.

[00:08:41] Speaker 03:
We would still make the same argument.

[00:08:42] Speaker 03:
It should be the deputy secretary signing it, but that would certainly be a closer case.

[00:08:46] Speaker 03:
Here, the declaration is devoid of any indication for why Mr. Heineman is able to make representations on the deputy secretary's behalf.

[00:08:54] Speaker 03:
And he also signs the declaration under penalty of perjury, but he says, this is true to my knowledge.

[00:09:00] Speaker 03:
So that sounds a little bit like when in a- He says, to the best of my knowledge.

[00:09:04] Speaker 04:
And he also says, as the official responsibility

[00:09:07] Speaker 04:
responsible for managing the department's responsibilities in this case, I can confirm.

[00:09:14] Speaker 04:
So to me, it doesn't sound to me like he's speculating or that he has no role in the case.

[00:09:22] Speaker 04:
It strikes me that the official responsible for managing the responsibilities in this case would be a person with knowledge.

[00:09:30] Speaker 04:
You don't dispute that the declarant was the official responsible for managing the department's responsibilities, do you?

[00:09:37] Speaker 03:
I have no basis to dispute that, but I don't know what exactly that means.

[00:09:42] Speaker 03:
And that's a problem with this declaration, is we're all looking at it and trying to draw inferences from very vague general statements in this declaration.

[00:09:50] Speaker 03:
It would be a different matter if the declaration had a specific description of why Mr. Heineman is considered a senior official, where he sits in the organizational chart.

[00:09:59] Speaker 02:
Are you focusing on his status as a senior official, or whether the secretary has designated him to answer this question for us?

[00:10:06] Speaker 03:
both of those as well as the basis for his knowledge to come in and make representations on the deputy secretary's behalf, assuming someone other than the deputy secretary could be a proper signatory in this case.

[00:10:18] Speaker 02:
You've now listed three points, and if you could circle back to the basis of his knowledge point, because that's what Judge Bennett is asking you about, your argument that this isn't sufficient to show the basis of his first-hand knowledge is

[00:10:34] Speaker 03:
Well, all the declaration says is, I'm an attorney advisor in the office of legal advisor.

[00:10:40] Speaker 03:
I was the official responsible for managing the department's responsibilities in this case.

[00:10:46] Speaker 02:
Why isn't that enough?

[00:10:47] Speaker 03:
Because it doesn't provide any specific description of what he did.

[00:10:51] Speaker 03:
Managing a case might involve substantive involvement.

[00:10:54] Speaker 03:
It might involve being a part of decision meetings with the deputy secretary.

[00:10:58] Speaker 03:
It might involve simply

[00:11:00] Speaker 03:
sending emails and making sure that the trains are running on time.

[00:11:03] Speaker 03:
Management's a very broad concept, and we don't know exactly what his role was.

[00:11:07] Speaker 01:
So what do you want us to do in this case to remand so that the Secretary of State or an actual designee for this matter can say, I have firsthand knowledge and all the procedures were complied with?

[00:11:24] Speaker 01:
Is that what you're asking for?

[00:11:25] Speaker 01:
Because that's what we did in Trinidad.

[00:11:28] Speaker 03:
We're asking for the court to reverse and remand with instructions to grant the writ because the government has stood behind this declaration.

[00:11:34] Speaker 04:
So you're saying that if we were to agree with you that this declaration isn't enough, we should grant the writ and void the extradition?

[00:11:49] Speaker 03:
Correct.

[00:11:49] Speaker 03:
And in the alternative, the court should remand with instructions to have the government submit a proper declaration.

[00:11:56] Speaker 03:
But the point.

[00:11:57] Speaker 02:
Wait a minute.

[00:11:57] Speaker 02:
So before you leave that, submit a proper declaration, would you be asking us to do something different than what the en banc court did in Trinidad y Garcia?

[00:12:06] Speaker 03:
No, Your Honor.

[00:12:06] Speaker 03:
I'm not asking for an expansion in Trinidad.

[00:12:08] Speaker 02:
OK.

[00:12:09] Speaker 02:
Thank you for the clarification.

[00:12:10] Speaker 03:
The reason we're asking for relief outright on appeal is the government has stood by this declaration.

[00:12:15] Speaker 03:
So this was litigated in the district court.

[00:12:17] Speaker 03:
We filed our Rule 60B motion.

[00:12:19] Speaker 03:
They opposed it and filed the declaration.

[00:12:21] Speaker 03:
We filed a reply and said, this declaration doesn't appear to comply with Trinidad.

[00:12:25] Speaker 03:
They had the option at that point.

[00:12:27] Speaker 03:
to go back to the State Department and get a declaration that complied, they chose not to do that.

[00:12:32] Speaker 03:
When we appealed and filed our supplemental brief, we again pointed out the deficiencies in the declaration.

[00:12:37] Speaker 03:
The government had the opportunity to then say, well, wait a minute, if there are problems with the declaration, the relief isn't to grant the writ outright, the relief is to remand and give us a second bite at the apple.

[00:12:46] Speaker 03:
They chose not to make that argument.

[00:12:47] Speaker 03:
They are standing by the declaration that they have submitted.

[00:12:50] Speaker 03:
and the court should decide this case based on that declaration.

[00:12:53] Speaker 03:
And I see I've gone well into my intended rebuttal time unless the court has any.

[00:12:57] Speaker 01:
Okay, so why don't you save the rest of your time for rebuttal.

[00:12:59] Speaker 03:
Thank you.

[00:13:00] Speaker 01:
Thank you.

[00:13:09] Speaker 00:
Good morning, may it please the court, Adam Flake for the respondent.

[00:13:13] Speaker 00:
Also, unless the panel instructs otherwise focus on the,

[00:13:19] Speaker 00:
supplemental briefing and the sufficiency of the declaration.

[00:13:23] Speaker 00:
As we pointed out in our supplemental briefing, what actually happened in Trinidad was a little bit unusual, because at the oral argument, the attorney for the government said, if instructed by the court, I will provide a declaration from the Secretary of State

[00:13:47] Speaker 01:
Who was Secretary Clinton at the time?

[00:13:50] Speaker 00:
It was Secretary Kerry.

[00:13:52] Speaker 01:
Kerry?

[00:13:53] Speaker 00:
Yes.

[00:13:54] Speaker 00:
Why did we use she?

[00:14:01] Speaker 00:
Well, it was Condoleezza Rice who had been involved in the case, and then she was replaced by Secretary Kerry.

[00:14:08] Speaker 01:
But the Department of State did submit the declaration.

[00:14:13] Speaker 00:
It did.

[00:14:13] Speaker 00:
And the reason that we submitted the declaration in that case was because the lawyer arguing the case said, if the court instructs, we will provide a declaration from the secretary.

[00:14:26] Speaker 02:
But counsel, we're bound by this unbanked opinion.

[00:14:28] Speaker 02:
Are you suggesting this is not binding?

[00:14:29] Speaker 00:
I'm not suggesting that it's not binding, and that was certainly a way that we could show that we had complied with our obligations.

[00:14:41] Speaker 00:
But what I am suggesting is that language that says, if the district court receives a declaration signed by the Secretary of State or his designee,

[00:14:51] Speaker 00:
that the inquiry will be at its end.

[00:14:54] Speaker 00:
What I am suggesting is that is not the only way that we can meet our obligation.

[00:15:01] Speaker 00:
Because the problem in Trinidad was the record was devoid of any evidence that the secretary or his designee had complied with his obligations to make this review.

[00:15:19] Speaker 00:
and so in the context of that particular case what we offered was

[00:15:23] Speaker 00:
we can get you a declaration signed by John Kerry.

[00:15:27] Speaker 00:
And we did in that case.

[00:15:29] Speaker 00:
But what I'm suggesting is... Well, we didn't require that.

[00:15:32] Speaker 02:
It says, signed by the secretary or a senior official properly designated by the secretary.

[00:15:37] Speaker 00:
Right.

[00:15:37] Speaker 00:
And that's what we offered was a declaration from John Kerry.

[00:15:42] Speaker 00:
And what the court said is, if we get a letter from the secretary or his designee, the inquiry will be at its end.

[00:15:51] Speaker 00:
But our argument is that the point of Trinidad was that the record was devoid of any evidence that the secretary or his designee had provided evidence.

[00:16:03] Speaker 00:
We volunteered a way to prove up that fact, and the court said, we instruct you to do so, and we did so.

[00:16:12] Speaker 00:
But by so doing, when the court did so, it was not telling us the only way that you can meet your obligation in this case is to provide

[00:16:21] Speaker 02:
I agree with you, and that's what I tried to say to opposing counsel.

[00:16:24] Speaker 02:
I agree with part of what you're saying.

[00:16:27] Speaker 02:
Trinidad e Garcia, by my read, is a very short opinion, so there's not a lot of room to hide in it.

[00:16:33] Speaker 02:
It does not suggest to me that the only way the government can meet its burden is through a declaration.

[00:16:38] Speaker 02:
What you're going to have trouble explaining to me is why we shouldn't enforce it as it is written, which is if the government chooses to go that route,

[00:16:45] Speaker 02:
right needs to expand that the declaration needs to indicate that it's signed by the secretary or is designee somebody that that the secretary said isn't you know uh... basically delegated has delegated this responsibility to that's all you know i i i think that the reason is because of the particular

[00:17:04] Speaker 00:
posture of Garcia, where we had offered such a declaration.

[00:17:09] Speaker 02:
Well, I appreciate that argument, but this is what the unbogged opinion says.

[00:17:15] Speaker 00:
It's so easy to comply.

[00:17:18] Speaker 02:
Well, it's just that it's a simple direction, and I'm not sure why it wasn't complied with here.

[00:17:22] Speaker 02:
I agree absolutely with Judge Wardlaw, and I don't think I'm going out on a limb to say that I read the same into Judge Bennett's questions, that we have a very limited role here.

[00:17:34] Speaker 02:
Very limited role, but it seems to me this is required.

[00:17:38] Speaker 00:
You're all right.

[00:17:39] Speaker 02:
You've given me the best answer you can.

[00:17:41] Speaker 00:
I'm not trying to belabor the point.

[00:17:43] Speaker 00:
And I don't mean to dig in or sound obtuse, but it was a sufficient weight.

[00:17:52] Speaker 01:
I'm not sure, because in the opinion, the concurrence authored by Thomas, who was then Chief Judge Thomas,

[00:18:02] Speaker 01:
And let's see who joined out.

[00:18:05] Speaker 01:
I think I joined it.

[00:18:07] Speaker 01:
And Judge Berzogne joined it.

[00:18:13] Speaker 01:
We expanded.

[00:18:14] Speaker 01:
We said the appropriate manner of review and the one endorsed by the government at oral argument, meaning that the government endorsed this manner.

[00:18:27] Speaker 01:
I don't know if the government

[00:18:30] Speaker 01:
You're suggesting the government, you know, volunteered an affidavit, but it wasn't meant to, the declaration, but it wasn't meant to be for all time.

[00:18:39] Speaker 01:
But the way Chief Judge Thomas wrote it, he said, it was the one endorsed by the government as oral argument is to require submission to the court of a certification or affidavit from the secretary or her authorized designee certifying compliance.

[00:18:59] Speaker 01:
That's not hard to do.

[00:19:00] Speaker 01:
I mean, that's the thing I find perplexing.

[00:19:03] Speaker 01:
It's like, if Tom Heineman is her certified designee, is her authorized, he's Secretary of State right now, Blinken, is his authorized designee,

[00:19:22] Speaker 01:
Why doesn't he say that?

[00:19:23] Speaker 01:
I'm the authorized designee.

[00:19:25] Speaker 00:
Your Honor, to be clear, we're not claiming that Tom Hyman is the authorized designee to make the decision whether or not to ultimately sign the extradition warrant.

[00:19:40] Speaker 00:
That is Assistant, or excuse me, Deputy Secretary Newland.

[00:19:46] Speaker 04:
And the declaration is clear on that.

[00:19:49] Speaker 04:
Yes.

[00:19:50] Speaker 04:
Secretary Nuland had the authority.

[00:19:52] Speaker 04:
Secretary Nuland made the decision.

[00:19:56] Speaker 04:
And I, Tom Heineman, know about this case because I'm managing the department's responsibilities.

[00:20:04] Speaker 04:
And this is what happened.

[00:20:05] Speaker 04:
The designation was made by somebody with authority, the acting deputy secretary.

[00:20:11] Speaker 00:
That's right, Your Honor.

[00:20:12] Speaker 00:
The way that we read Trinidad is the evidence that was lacking was any evidence that the secretary or the designee had made the determination that he or she was required to make.

[00:20:29] Speaker 00:
And what we provided in this case in the form of a declaration from Tom Heineman, who has personal knowledge, who works in the office.

[00:20:36] Speaker 01:
How do we know he has personal knowledge?

[00:20:38] Speaker 00:
he uh... he states that i have this declaration right here i'd i'd make the following declarations based upon my my personal knowledge and the information made available to me and in the performance of my duties case and personal knowledge and then some non-personal knowledge he he is he is an attorney advisor in the

[00:21:03] Speaker 00:
in the office.

[00:21:05] Speaker 00:
He's legal counsel for the office.

[00:21:07] Speaker 01:
He says personal knowledge and upon information made available to me.

[00:21:13] Speaker 01:
So that's not necessarily his personal knowledge.

[00:21:18] Speaker 01:
That's someone else's personal knowledge that was made available to him.

[00:21:25] Speaker 00:
I mean, I'm not sure that I would read that much into... Why doesn't he just stop at personal knowledge?

[00:21:31] Speaker 00:
He's talking about, well, I think his statement is he has personal knowledge of how the process works.

[00:21:40] Speaker 00:
But I don't think that he can say, I know about every email sent from this department to.

[00:21:46] Speaker 04:
And I'm not sure, at least for me, why that would be required in this instance.

[00:21:56] Speaker 04:
If one wanted to come up with a reductio ad absurdum thing, you could have an administrative assistant in the department attached to their affidavit video of the assistant secretary signing the extradition warrant, and they certainly wouldn't be a senior official.

[00:22:14] Speaker 04:
But again, Mr. Heineman

[00:22:24] Speaker 04:
What does it mean to you that he's the official responsible for managing the responsibilities of the Department of State in this extradition case?

[00:22:33] Speaker 04:
What does that mean to the government?

[00:22:36] Speaker 00:
The State Department has a division that deals with extradition requests, and they evaluate these.

[00:22:47] Speaker 00:
And it's in the regs that we cited in our brief.

[00:22:52] Speaker 00:
The department as a whole evaluates these things, and it is ultimately the secretary or his designee that makes the decision whether or not to extradite.

[00:23:05] Speaker 00:
But the secretary and his designee aren't the ones that are

[00:23:09] Speaker 00:
talking to foreign countries and reading reports about various things.

[00:23:14] Speaker 00:
It's how the department functions and that's how I read that.

[00:23:24] Speaker 02:
So if I got you right, the secretary or his designee made the decision in this has to make the decision.

[00:23:32] Speaker 02:
In this case, the secretary's designee made the decision and the declaration, we don't have a declaration from either of those people, but we have a declaration from Mr. Heinemann.

[00:23:41] Speaker 02:
And Mr. Heineman's declaration suffices because?

[00:23:46] Speaker 00:
Mr. Heineman's declaration suffices because he has knowledge how the department operates and the information that the secretary's designee considered in reaching her decision.

[00:24:03] Speaker 00:
And that was the evidence that was lacking.

[00:24:05] Speaker 00:
What was lacking in Trinidad was... Wait a minute, that's the evidence that was...

[00:24:09] Speaker 02:
And I think you're saying that that's sufficient.

[00:24:13] Speaker 02:
Yes.

[00:24:13] Speaker 02:
Here.

[00:24:13] Speaker 02:
OK.

[00:24:14] Speaker 00:
Yes.

[00:24:14] Speaker 00:
So the evidence that was lacking in Trinidad was any evidence that the secretary or his designee had actually complied with the obligations under the CAAT to engage in this analysis and make a decision.

[00:24:28] Speaker 00:
And what Mr. Heineman was able to provide is, I have knowledge of how the process works.

[00:24:34] Speaker 00:
I have knowledge that the secretary's designee made this decision.

[00:24:39] Speaker 02:
How does the position that you're advancing today differ from the positions that were advanced in the dissents filed in Tunis Dadi Garcia?

[00:24:49] Speaker 00:
To be perfectly frank with you, Your Honor, I haven't gotten into any great detail of the dissents in Trinidad.

[00:24:57] Speaker 00:
There were, as Judge Wardlaw was on the panel, and I'm sure you remember, there were a lot of moving parts.

[00:25:03] Speaker 00:
There were arguments we made that were not accepted in that case, such as the real ID.

[00:25:09] Speaker 00:
That was a whole other piece of it, and we're certainly not asking the court to

[00:25:13] Speaker 00:
to walk back Trinidad.

[00:25:15] Speaker 04:
But I mean, as I take your major point vis-a-vis Trinidad is, as my colleagues have said, and as you have said, what the court, the in-bank court said, the record before us provides no evidence.

[00:25:29] Speaker 04:
So it really was a blank slate according to the in-bank court.

[00:25:34] Speaker 04:
And your argument is we're not in the same posture here as the in-bank court was in Trinidad.

[00:25:41] Speaker 00:
Yes, Your Honor.

[00:25:42] Speaker 00:
And what happened in Trinidad was we offered something.

[00:25:45] Speaker 00:
The court said that would be good enough.

[00:25:48] Speaker 00:
But what we do not read Trinidad as meaning this is the only this is this is the one and only route to.

[00:25:55] Speaker 02:
I appreciate that.

[00:25:56] Speaker 02:
Is there some reason you can't just comply with this.

[00:26:00] Speaker 02:
I agree that this seems pretty simple.

[00:26:02] Speaker 02:
What am I missing about.

[00:26:03] Speaker 00:
To be very frank with you, Your Honor, I'm an Assistant United States Attorney in the District of Nevada.

[00:26:09] Speaker 00:
I am not familiar with the inner workings of the State Department, and I don't think there's anything in the record about that.

[00:26:20] Speaker 00:
Again, I don't mean to be obtuse, but I simply don't know.

[00:26:22] Speaker 02:
But you've been actually very helpful, and I appreciate your response.

[00:26:24] Speaker 01:
No, it has been helpful.

[00:26:25] Speaker 01:
But I just think that you read the concurrence with... You can pick apart the language

[00:26:33] Speaker 01:
the en banc, I mean the per curiam, but that was a per curiam.

[00:26:39] Speaker 01:
And what Chief Judge Chalmers wrote was that the appropriate manner of review and the one endorsed by the government in oral argument is to require submission to the court of a certification or affidavit from the secretary or authorized designee.

[00:26:57] Speaker 01:
Why couldn't Tom say,

[00:27:01] Speaker 01:
Tom Heineman say, I am the authorized designee to submit the evidence that the Department of State complied with its obligations under the laws of the United States.

[00:27:17] Speaker 00:
Well, it's two different things.

[00:27:20] Speaker 00:
In the regs,

[00:27:22] Speaker 00:
Uh, it says that the, either the secretary of state or the designee has to make the final determination as to whether or not to.

[00:27:33] Speaker 01:
Why couldn't Mr. Newland just have signed that he made the determination and complied with the laws of the United States?

[00:27:40] Speaker 01:
It's such a minimal requirement.

[00:27:44] Speaker 00:
It's a woman.

[00:27:45] Speaker 00:
And I agree that, I mean, we got a declaration from John Kerry in Trinidad.

[00:27:51] Speaker 00:
I agree that we could have followed that route.

[00:27:57] Speaker 00:
But we didn't do so in this case.

[00:27:59] Speaker 00:
We feel like what we did.

[00:28:01] Speaker 01:
I think we felt that we had to have something or else there was no judicial review at all.

[00:28:07] Speaker 00:
Right.

[00:28:08] Speaker 00:
And what I'm saying in this case is,

[00:28:10] Speaker 00:
What Trinidad lacked was anything to review.

[00:28:13] Speaker 00:
Was any evidence that the secretary or his designee had made the proper review and reached the determination?

[00:28:21] Speaker 01:
A slippery slope one step further.

[00:28:24] Speaker 01:
And I hear Judge Bennett, and he's saying, well, there was nothing there.

[00:28:29] Speaker 01:
So let's distinguish this, and then you're going to get a slipperier slope another step further.

[00:28:36] Speaker 01:
And I don't know.

[00:28:39] Speaker 00:
I respectfully disagree, Your Honor.

[00:28:40] Speaker 00:
The thing that keeps it from being a slippery slope is the secretary or his designee has to make the decision whether or not to authorize the extradition.

[00:28:52] Speaker 00:
And that's very clear.

[00:28:56] Speaker 00:
Mr. Hyman couldn't make that declaration because he is not the designee.

[00:29:02] Speaker 00:
in this case, it was Deputy Secretary Newland that was required to go through the analysis required by the regs.

[00:29:11] Speaker 00:
And all we're talking about is how we provide evidence that she did so.

[00:29:17] Speaker 00:
And the evidence that we provided in this case is someone with personal knowledge of how the process worked, Mr. Heinemann, who works in the office where they

[00:29:24] Speaker 00:
uh... put together this review for sec secretary no uh... excuse me exit assist uh... deputies secretary i understand that you're not that you're defending something that you weren't a part of that's the different offices process but i mean i'm i'm i'm certainly not trying to distance myself from from what we did and from what uh... state did in this case uh... i don't think you are i'm just saying

[00:29:51] Speaker 00:
The only thing I meant to distance myself from is saying, well, why couldn't Secretary Nuland do this?

[00:29:57] Speaker 00:
And to be very frank with you, I don't know the answer to that because I am not familiar with the inner workings of the department.

[00:30:04] Speaker 04:
I mean, part of the answer, I suppose, could be that Secretary Nuland, Secretary Blinken, other officials in the department

[00:30:11] Speaker 04:
have other things that take up their day-to-day affairs, like that we read about in the newspaper every day, and that they should get to decide how they run the department and how they prove that somebody has signed something.

[00:30:25] Speaker 04:
But there's another perspective on this.

[00:30:28] Speaker 00:
With the state of the world today, Your Honor, I think that is a safe assumption that they are very busy people.

[00:30:35] Speaker 01:
Oh, that's another slippier slope, because the state of the world could just keep getting worse.

[00:30:41] Speaker 00:
But to be clear, we're not trying to walk back from the secretary or his designee's obligation to make the determination.

[00:30:50] Speaker 00:
And in this case, we have evidence that the secretary's designee, Deputy Newland, made the determination.

[00:30:57] Speaker 00:
And we believe that under Trinidad, that's sufficient.

[00:31:01] Speaker 01:
All right.

[00:31:02] Speaker 01:
Thank you.

[00:31:02] Speaker 01:
Thank you, counsel.

[00:31:05] Speaker 01:
I think we all understand the argument

[00:31:19] Speaker 02:
I agree with you, why wouldn't we do exactly what we did in Trinidad e Garcia and remand for the State Department to supply a compliant declaration?

[00:31:36] Speaker 03:
Because in Trinidad, the government was not on notice that that was going to be required.

[00:31:41] Speaker 03:
That's a requirement that the Anban Court in Trinidad put into effect in the first instance.

[00:31:46] Speaker 02:
Here the government is- And so somehow, but there's a- the explanation that we just heard, it seems to me to be a good faith explanation.

[00:31:54] Speaker 02:
I think it misses the mark, but again, I'm just one out of three up here.

[00:31:58] Speaker 02:
You really think we'd grant the writ?

[00:32:00] Speaker 02:
Is there any precedent for that?

[00:32:01] Speaker 03:
I'm not aware of a case since Trinidad that's in the same posture as ours.

[00:32:05] Speaker 02:
Because we have an extraordinarily narrow role here.

[00:32:08] Speaker 03:
I agree with that, but it's important to give this narrow role meaning.

[00:32:11] Speaker 03:
Trinidad takes away a broad scope of substantive review in these cases, and it retains this limited scope of procedural review.

[00:32:18] Speaker 03:
It's important to give that review meaning, and it's important to hold the government to its litigation choices.

[00:32:23] Speaker 03:
The government has known about the Trinidad decision since 2012.

[00:32:28] Speaker 03:
they submitted the declaration they submitted in the district court and they have continued to stand by that declaration up till today and have not said you know if you think there's a problem with the declaration give us another bite at the apple and given the government's litigation choices the court should not give the government a second bite at the apple and the

[00:32:45] Speaker 03:
I'll turn back to a point that was made at the end of opposing counsel's argument about these individuals being busy, and certainly we don't dispute that they're busy individuals, but they are taking time to make these extradition decisions.

[00:32:57] Speaker 03:
They have not delegated these extradition decisions to further lower level individuals, and they have to sign a surrender warrant.

[00:33:03] Speaker 03:
My understanding is there's a physical surrender warrant that gets signed.

[00:33:08] Speaker 03:
Someone like Mr. Heineman is giving them a declaration pursuant to Trinidad to sign at the same time they are signing the surrender warrant.

[00:33:14] Speaker 03:
That's a de minimis additional imposition on the secretary or the deputy secretary's role.

[00:33:19] Speaker 02:
Has that warrant been signed in this case?

[00:33:22] Speaker 03:
I believe that's a question for the government.

[00:33:24] Speaker 02:
Do we have that in our record?

[00:33:24] Speaker 03:
But I think there's been a representation of that.

[00:33:26] Speaker 03:
Yes, Your Honor.

[00:33:28] Speaker 03:
So it would not take very much time to- Who signed it?

[00:33:32] Speaker 03:
I believe the deputy secretary.

[00:33:33] Speaker 01:
Do we have this in our record?

[00:33:35] Speaker 00:
It is not in the record.

[00:33:36] Speaker 00:
Deputy Newland has signed it.

[00:33:38] Speaker 01:
Why couldn't he have signed it simultaneously with the declaration?

[00:33:44] Speaker 01:
How much time does that take?

[00:33:46] Speaker 01:
Yes, I am.

[00:33:57] Speaker 00:
Again, I do not know about the inner workings of the State Department and who signs what.

[00:34:04] Speaker 00:
The important point to me is that Trinidad requires evidence that the secretary or his designee complied with his or her obligations.

[00:34:16] Speaker 00:
We provided evidence that he did so in this case of somebody who had personal knowledge of how the process worked.

[00:34:23] Speaker 03:
I believe I am over my rebuttal time unless the court has any further questions.

[00:34:31] Speaker 01:
Thank you.

[00:34:33] Speaker 01:
Thank you very much.