[00:00:02] Speaker 01: Your Honor, I would reserve five minutes. [00:00:05] Speaker 00: Would you be kind enough to bring the microphone close? [00:00:08] Speaker 01: How's that, Your Honor? [00:00:11] Speaker 00: Both of them, maybe. [00:00:12] Speaker 01: How's that? [00:00:16] Speaker 03: You can grab the other one and pull that one there, too. [00:00:18] Speaker 03: There you go. [00:00:19] Speaker 01: Thank you. [00:00:19] Speaker 01: Oh, I had two. [00:00:20] Speaker 01: Oh, that's better. [00:00:21] Speaker 01: Right? [00:00:24] Speaker 02: The only one might be working. [00:00:28] Speaker 01: OK. [00:00:28] Speaker 01: I got to move back. [00:00:30] Speaker 01: Yeah. [00:00:30] Speaker 01: All right. [00:00:31] Speaker 01: Thank you, Your Honor. [00:00:33] Speaker 01: Ms. [00:00:34] Speaker 01: Zancone, Your Honors, may it please the Court, I'm asking for the following relief, that the certificate of extradition, in this case, be reversed and that my client, Mr. Al-Noury, be released from confinement. [00:00:55] Speaker 01: In this case, there are four issues. [00:00:58] Speaker 01: The first is probable cause, and that is whether the defendant [00:01:04] Speaker 01: has produced reasonably reliable probative evidence obliterating probable cause. [00:01:13] Speaker 01: There are two ways to do it. [00:01:15] Speaker 01: One is by compelling eyewitness statements, specifically that he did not commit the murders, at least the murder of the lieutenant, by [00:01:27] Speaker 00: Counsel, your time is short, and I would very much appreciate your addressing the political offense doctrine. [00:01:37] Speaker 01: Very well, Your Honor. [00:01:46] Speaker 01: In that case, Your Honor. [00:01:53] Speaker 01: We know that there must be two components. [00:01:54] Speaker 01: An uprising is one. [00:01:57] Speaker 01: The second acts incidental to the uprising. [00:02:02] Speaker 01: The focus here is not on the motivation or the acts nor the types. [00:02:07] Speaker 01: It is, however, on the charges. [00:02:09] Speaker 01: So if we turn to the charges in this case, the ones produced by, I'll call it the Al-Karq Investigative Court, the Al-Karq-Karq Court [00:02:21] Speaker 01: charged Mr. Al Nouri with terrorist and disruptive activities under the Act called the Terrorist and Disruptive Activities Act. [00:02:33] Speaker 01: So in essence, what he's been charged with is committing terrorism. [00:02:39] Speaker 01: That is the same, Your Honor, if we disregard the concept of terrorism, [00:02:44] Speaker 01: as a political offense. [00:02:47] Speaker 01: So in other words, the fact that it's called terrorism doesn't negate it, even though the government's expert witness would say that the concept of terrorism negates the defense, I would disagree. [00:03:02] Speaker 01: And I'll get to that in a moment, Your Honor. [00:03:05] Speaker 01: The first component is uprising. [00:03:08] Speaker 01: This must be a revolt by indigenous people, this is according to Quinn, against their government or an occupying power. [00:03:17] Speaker 01: It suggests that the form or composition of the government is the struggle. [00:03:23] Speaker 01: It's a domestic struggle against the form or composition of the government, and revolt can only occur within the country. [00:03:32] Speaker 01: in which the risers up live. [00:03:35] Speaker 01: So if we just pause for a moment and analyze that with respect to this case, these criteria for an uprising apply here. [00:03:45] Speaker 01: The killings here were aimed at police, local police. [00:03:49] Speaker 01: They were aimed to restore the Sunni influence in the national government. [00:03:56] Speaker 01: They were conducted wholly within Iraq. [00:03:59] Speaker 01: They were conducted by indigenous people, meaning [00:04:01] Speaker 01: resonance, if you will, of Al Anbar province and specifically Fallujah. [00:04:09] Speaker 01: The second component is an incidental component. [00:04:13] Speaker 01: It is, according to Quinn, a liberal standard. [00:04:17] Speaker 01: It is objective, non-judgmental in its application. [00:04:22] Speaker 01: It is determinative by what the revolutionaries, not the courts, determine to be the tactics to bring down or change the government. [00:04:31] Speaker 01: Going back to my mention of the idea of terrorism, it in and of itself does not disqualify the defense here as murder equivalent to terrorism. [00:04:44] Speaker 01: One might look at it that way, but nonetheless, the murders of these two individuals are done with the idea of overthrowing the local government. [00:04:57] Speaker 03: So, Mr. Eisenberg, if I could interrupt you for a moment. [00:04:59] Speaker 01: Yes, ma'am. [00:05:01] Speaker 03: There is evidence in the record that the local insurgents, the Sunnis, were [00:05:09] Speaker 03: opposed to the killing of the local police because many of those officers were SUNY. [00:05:15] Speaker 03: And also that there was [00:05:19] Speaker 03: the local movements were opposed to AQI and to their efforts in Iraq, which would seem to go to what you just said about the tactics being the choice of the insurgents. [00:05:30] Speaker 03: And it doesn't seem that these were their tactics, or at least there's some evidence that supports the conclusion that these were not their tactics. [00:05:36] Speaker 03: So these were not really political acts as part of the insurgency in 2006. [00:05:42] Speaker 01: I think, Your Honor, that conflates one group with another. [00:05:46] Speaker 01: In other words, what was going on in Iraq at this time was very decentralized. [00:05:51] Speaker 01: There were many groups, many groups who had their own individual construction, their own leadership, their own desires, their own objects. [00:06:00] Speaker 01: So if some disagreed with AQI, others perhaps did not. [00:06:05] Speaker 01: And in this case, I think it's wrong to label every revolutionary or reactionary [00:06:11] Speaker 01: in the country as being a member of the Al-Qaeda in its international concept. [00:06:20] Speaker 03: But there was evidence and testimony that your client, Mr. Al-Noury, was in fact a member of a QI and taking direction from leaders in that organization who were not Iraqi. [00:06:31] Speaker 01: Your Honor, I respectfully disagree as to whether that was evidence. [00:06:34] Speaker 01: That was a conclusion done by the Alkark Court, but I don't believe it relied on any specific evidence. [00:06:42] Speaker 01: What we did hear is someone who said that my client was a member of AQI. [00:06:48] Speaker 01: I submit, Your Honor, if that is even true, then it doesn't necessarily mean because he's a member of AQI [00:06:58] Speaker 01: He is part of an effort to commit terrorism that has no impact other than being part of the international caliphate. [00:07:09] Speaker 01: In other words, you can conduct yourself with aggressive action if what you want to do is get rid of this, in this case, the influence of the newly installed government. [00:07:22] Speaker 01: And that is what the difficulty with this case is, it's hard to apply any [00:07:28] Speaker 01: conclusive decision with respect to the defense unless one is going to assume that simply because AQI is part of an international organization, then that would make it very difficult to apply the defense in this case. [00:07:47] Speaker 01: I would admit that, but that's not what the evidence shows. [00:07:50] Speaker 01: The evidence doesn't show there's any connection to the international, I'll call it Calif, if I'm pronouncing it correctly. [00:07:58] Speaker 01: None of these people ever went abroad to fight in Syria or some other country in which the concept of establishing the International Caliphate was being espoused. [00:08:14] Speaker 01: All of these people were from Fallujah. [00:08:17] Speaker 01: All of these people lived in Fallujah almost their entire lives. [00:08:21] Speaker 01: There is no indication that anybody from the international part [00:08:27] Speaker 01: of Al-Qaeda met with these people. [00:08:30] Speaker 01: There's no indication that the international aspect of Al-Qaeda was present during either of these two murders. [00:08:39] Speaker 03: Doesn't the record include information that the local leadership people who were giving direction were not Iraqi? [00:08:48] Speaker 03: They were al-Qaeda fighters from other countries. [00:08:51] Speaker 03: I think one was from Syria, and the other, I'm forgetting the country of origin, but that there were people in Iraq who were leaders in AQI, who were directing Mr. al-Nuri, allegedly, who were not Iraqi. [00:09:05] Speaker 03: They were not local insurgents. [00:09:07] Speaker 01: I don't see that, Your Honor, from anything that I can tell from the people who were actually interviewed. [00:09:13] Speaker 01: So, in other words, you have the cooperator, you have eyewitness number one, eyewitness number two, eyewitness number three. [00:09:24] Speaker 01: Now, some people do say that there is a connection with AQI, but I don't see in the record from these people that there were actually members of the international [00:09:36] Speaker 01: Caliphate organization sitting with them and planning. [00:09:41] Speaker 01: In fact, this particular, the murder of Officer Muhammad, I believe, occurred at a meeting in a house in Fallujah where there were three or four men. [00:09:52] Speaker 01: None of them, I believe, were connected from outside of Fallujah. [00:10:00] Speaker 02: So does Mr. El Nori deny that he's a member of AQI? [00:10:04] Speaker 02: Because I thought I read that he was in a management position. [00:10:07] Speaker 01: Excuse me, Your Honor. [00:10:11] Speaker 01: I'm sorry. [00:10:11] Speaker 01: Sure. [00:10:11] Speaker 01: Your Honor, Mr. El Nori denies that he was even part of this. [00:10:15] Speaker 01: As you can tell from part of the record that we have tried to produce, he maintains that he wasn't involved in any or either of these two shootings. [00:10:25] Speaker 01: So the answer to your question, Your Honor, is that [00:10:29] Speaker 01: he denies any kind of membership in AQI. [00:10:32] Speaker 01: And in fact, other than the fact that someone has claimed that they were all part of that, I don't see that there's any way to confirm it. [00:10:44] Speaker 02: I thought I also read something about him receiving money, which in my mind was a bit of a contradiction. [00:10:49] Speaker 02: Either you're a member of a group or you're receiving money, but maybe you could be doing both. [00:10:53] Speaker 02: So is this just information that's coming from the Iraqi court? [00:10:58] Speaker 01: No, Your Honor. [00:10:59] Speaker 01: I'm sorry, I didn't mean to interrupt. [00:11:01] Speaker 01: No, it's not from the court. [00:11:02] Speaker 01: It is from one of the witnesses in this case who said at the end of one of the killings, 50,000 dinar were given to them. [00:11:12] Speaker 01: But we don't know from who. [00:11:14] Speaker 01: We don't know why. [00:11:16] Speaker 01: And we don't know what it was for. [00:11:18] Speaker 01: So that doesn't necessarily mean, doesn't mean at all, doesn't confirm at all, that the international [00:11:26] Speaker 01: aspect of this organization was involved in the planning or even the execution of the murders. [00:11:37] Speaker 03: If they were paid, if they were mercenaries, does that mean they're outside of the political action exception or political act exception? [00:11:46] Speaker 01: No, Your Honor, not necessarily. [00:11:47] Speaker 01: They could have been paid in order to develop ammunition, in order to somehow sustain themselves. [00:11:56] Speaker 01: It has nothing to do with being paid in order to commit terrorism, as far as I can see. [00:12:02] Speaker 01: And again, that's because the record is very thin and it doesn't reflect the reason for the payment at all. [00:12:10] Speaker 01: So, respectfully, Your Honor, I would disagree with that conclusion. [00:12:15] Speaker 01: And I'm sure that, well, in order for any revolution to take place, [00:12:25] Speaker 01: There would have to be support. [00:12:27] Speaker 01: There would have to be support in terms of ammunition, in terms of weapons, and so forth. [00:12:31] Speaker 01: So I see nothing in the file here that would indicate that it was simply done as a reward for killing people. [00:12:39] Speaker 03: So it could be money that was used by an international organization to finance efforts within Iraq. [00:12:48] Speaker 01: We don't know that, Your Honor. [00:12:52] Speaker 01: It's to speculate and therefore come away with speculation and say that the defense doesn't apply. [00:12:57] Speaker 03: What did the witness say was the source of the money or did he? [00:13:00] Speaker 01: I don't believe he did. [00:13:03] Speaker 01: It just says they received $50,000 dinner at the conclusion of the event. [00:13:12] Speaker 01: The incidental component, which is the second component, is according to case authority, something that should be applied objectively, non-judgmentally. [00:13:25] Speaker 01: and that revolutionaries and not the court determine the tactics. [00:13:29] Speaker 01: So, and I don't know that there's much of a disagreement that the acts here happened in course of or connected with or in furtherance of the idea that there would be an uprising and that these acts were designed to bring it about. [00:13:49] Speaker 01: So what we don't consider [00:13:51] Speaker 01: are the following elements, and this is also in Quinn. [00:13:56] Speaker 01: Proof is not required of the potential or actual effectiveness. [00:14:01] Speaker 01: Motivation of the accused is not a proof that is required. [00:14:07] Speaker 01: Actual membership in the group isn't required. [00:14:10] Speaker 01: There's a difficulty here for Mr. Alnori because he claims he wasn't a member of the group, but people are pointing a finger at him, so he must defend himself. [00:14:20] Speaker 01: and he's using the political defense as one of his four defenses. [00:14:28] Speaker 01: Political motivation is also not to be considered, nor is the group's organization or hierarchy. [00:14:35] Speaker 01: That all comes from Quinn. [00:14:37] Speaker 01: So if all that is true, it's not a matter of making sure that the activities fit within a very narrow [00:14:49] Speaker 01: peg or hole in order for the defense to apply. [00:14:53] Speaker 01: We just don't have enough here to say that it doesn't apply. [00:14:57] Speaker 01: Now, I know he has the obligation of showing that the defense is a defense that is appropriate in his particular case, and I say he's made that claim just because there isn't any indication otherwise that this is part of an international terroristic activity undertaken by him. [00:15:21] Speaker 01: To further the idea about what has happened here, the killings of these two policemen were not done for personal reasons. [00:15:31] Speaker 01: As I mentioned, they were done by local Fallujah residents. [00:15:34] Speaker 01: They were done within Iraq. [00:15:37] Speaker 01: There's no proof, and this goes to a previous question perhaps by Judge Graber, that al-Qaeda organized, directed, supported, or otherwise carried out these killings. [00:15:49] Speaker 01: And to my knowledge from the record, no one was president from Al-Qaeda, the international Al-Qaeda. [00:15:56] Speaker 01: At any of these meetings, there's no records to indicate that Al-Qaeda directed the killings. [00:16:03] Speaker 01: So the government would say that the defense [00:16:12] Speaker 01: would not apply because it doesn't include international political coercion. [00:16:21] Speaker 01: Again, there's no record to show that these individuals were supported by Al-Qaeda. [00:16:27] Speaker 03: Mr. Eisenberg, I found the reference I was trying to recall, that the AQI leader of the Anbar province where Fallujah is located was Gerar Al-Shami. [00:16:42] Speaker 03: a Syrian foreign fighter. [00:16:43] Speaker 03: So there are specific people named in the record who were not Iraqi, who were the leaders of AQI in their efforts there. [00:16:52] Speaker 03: And what I understood your previous answer to be was there was no evidence of that. [00:16:56] Speaker 01: Well, then I stand corrected, Your Honor. [00:16:58] Speaker 01: But I don't believe there's any evidence that any of those people were involved with these meetings. [00:17:04] Speaker 01: Just simply that they were in killings, just simply that they were present doesn't necessarily mean [00:17:09] Speaker 01: the defense doesn't apply. [00:17:11] Speaker 01: I think you have to look at what we have in terms of the actual activities. [00:17:16] Speaker 01: Who did them? [00:17:17] Speaker 01: Who was present? [00:17:19] Speaker 01: And how were they planned? [00:17:21] Speaker 01: And to say that AQI was present in the area doesn't get you to the point where you can say the defense does not apply. [00:17:31] Speaker 03: So you wanted to reserve some time. [00:17:32] Speaker 03: You're at two and a half minutes. [00:17:34] Speaker 03: Did you still wish to do so? [00:17:35] Speaker 01: No, I have two and a half minutes of my own time. [00:17:39] Speaker 01: All right. [00:17:40] Speaker 03: Well, then let me go to one of the... You have two and a half minutes left. [00:17:44] Speaker 03: You wanted to reserve time for rebuttal. [00:17:46] Speaker 03: If you use that two and a half minutes, then you, in theory, would not have any rebuttal time unless I decided that you could have some rebuttal time. [00:17:52] Speaker 01: And I'm pretty generous, so... I thank you, Your Honor, but I'm going to take those two minutes now. [00:17:58] Speaker 01: Okay. [00:17:58] Speaker 01: May it please the Court. [00:18:00] Speaker 01: I want to turn to the idea that torture and abusive treatment doesn't apply here. [00:18:05] Speaker 01: This is my client's third defense. [00:18:09] Speaker 01: Professor Hamoudi, the relator's expert, was able to lay out a good deal of information concerning how the criminal justice system works in Iraq. [00:18:22] Speaker 01: In effect, there are trials that have no meaning. [00:18:26] Speaker 01: They are swift. [00:18:27] Speaker 01: They take up perhaps one day, the verdict is rendered almost immediately, and typically in cases like this, the sentence is death. [00:18:37] Speaker 01: The results of the cases heavily rely on confessions, often forced, and are particularly prevalent in courts trying terrorism cases. [00:18:49] Speaker 01: There are three examples that I can see. [00:18:52] Speaker 01: I just cite one of them in terms of how this process works. [00:18:56] Speaker 01: There was the evidence of confession that the accused tried to recant in court because of torture. [00:19:06] Speaker 01: The court dismissed the claims and sentenced 24 men in this particular case to death in a case that lasted one day. [00:19:15] Speaker 01: The government says the rule of non-inquiry would apply here. [00:19:19] Speaker 01: I disagree, Your Honor, respectfully. [00:19:21] Speaker 01: There are several cases that recognize the idea behind torture. [00:19:26] Speaker 01: and behind forced confessions. [00:19:29] Speaker 01: And even in the Ninth Circuit, Imani recognizes the possibility. [00:19:36] Speaker 01: In this particular case, the defense would apply because the Iraq system of justice simply does not recognize any standard that we would be comfortable with. [00:19:48] Speaker 01: And finally, the last one is investigation of other offenses. [00:19:54] Speaker 01: Your Honor, I will simply say that [00:19:56] Speaker 01: Iraq does intend to investigate my client. [00:19:59] Speaker 01: The case summary for other offenses, the case summary indicates that extradition is for these two incidences only. [00:20:08] Speaker 01: But as far as other cases for which the accused is wanted, that's in the case summary. [00:20:14] Speaker 01: These cases are still under investigation. [00:20:17] Speaker 01: No legal proceedings have been taken. [00:20:19] Speaker 01: as yet against him, as yet against him. [00:20:23] Speaker 01: It implies to me, Your Honor, that that surely is to happen. [00:20:26] Speaker 01: I know we don't want to speculate, but frankly, I don't come away with any other conclusion. [00:20:32] Speaker 01: If that's true, then according to the treaty between the two countries, which provides that no person shall be tried for any crime other than that for which he was surrendered without the consent of the Surrendering Eye Party, [00:20:47] Speaker 01: would have to apply. [00:20:50] Speaker 01: However, Mr. Al-Nour, at that point, would be in the custody of Iraq. [00:20:56] Speaker 01: Is Iraq prepared to say, we'll send him back so that he can enjoy to the United States, so that he can enjoy his rights under the habeas corpus statute, which allows him to come to court and make a case? [00:21:12] Speaker 01: I respectfully submit, Your Honor, I doubt that that would happen. [00:21:15] Speaker 01: And would the government consent to have him tried and investigated without him coming back and enjoying his rights here? [00:21:23] Speaker 01: I hope that that would not happen because that would deprive him of the due process of being able to take advantage of the statute. [00:21:31] Speaker 01: Your Honor, I thank you for the additional time, Your Honor. [00:21:50] Speaker 04: Good morning, Your Honors. [00:21:51] Speaker 04: May I please the court? [00:21:51] Speaker 04: My name is Jillian Basanson. [00:21:53] Speaker 04: I represent the government respondents. [00:21:56] Speaker 04: Three courts have carefully considered the petitioner's case, and all three got it right. [00:22:01] Speaker 04: The petitioner is extraditable to Iraq to allow that country to prosecute him for the two executions of police officers that he committed on behalf of al-Qaeda in Iraq. [00:22:12] Speaker 00: Counsel, I want to ask you also to concentrate on the political offense exception [00:22:20] Speaker 00: And I want to take you through a series of hypotheticals to help me understand exactly what your position is. [00:22:29] Speaker 00: And so I want you to suppose that there is clearly an uprising in country X. There's no question about that aspect of it. [00:22:40] Speaker 00: And the accused person lives in country X, has never lived anywhere else, and commits two killings [00:22:50] Speaker 00: in order to support the uprising. [00:22:57] Speaker 00: The political offense exception would apply in that situation. [00:23:01] Speaker 00: So now I want to change the facts and ask for your position on that. [00:23:05] Speaker 00: Suppose that within the group that is part of this uprising, there are differences of opinion about tactics. [00:23:14] Speaker 00: There are some people, again, all local in this example, [00:23:19] Speaker 00: who really don't want anybody killed, and yet there's a group who think that violence is the answer. [00:23:26] Speaker 00: Does the fact that some people within the uprising disagree with what the individual did, does that make it somehow not incidental to the uprising, or for any other reason not part of a political exception? [00:23:42] Speaker 04: No, Your Honor. [00:23:44] Speaker 04: I think that really, as is illustrated by this case, [00:23:48] Speaker 04: outside of the AQI context that there can be multiple parts of an uprising and different tactics that are used in an insurgency. [00:23:56] Speaker 04: So what's important is the fact that that aspect of the insurgency is trying to change its own internal political structure. [00:24:05] Speaker 00: I don't think there has to be a. So now let's assume that [00:24:12] Speaker 00: A group from another country says, boy, what you're doing is really justified. [00:24:16] Speaker 00: We're going to come over and we're going to also help out. [00:24:20] Speaker 00: But our person is still local and is just doing what the person is doing. [00:24:26] Speaker 00: Does the presence of outsiders destroy the ability to rely on the political offense exception? [00:24:35] Speaker 00: I think there's a possibility it could. [00:24:37] Speaker 00: Why? [00:24:38] Speaker 00: And in what circumstances? [00:24:41] Speaker 04: If for instance, one foreign fighter came to assist a domestic political uprising that was an uprising by the indigenous people to challenge that local government, that wouldn't defeat the political offense exception. [00:24:57] Speaker 00: So why would it matter if there are a hundred locals and 25 people from a neighboring country who are sympathetic? [00:25:05] Speaker 00: Does it, but our person is still a local person. [00:25:08] Speaker 00: Why, why does the number matter? [00:25:10] Speaker 04: I could imagine a time when there would be so many foreign fighters coming in that it's no longer a local insurgency, because under Quinn, the uprising has to be the people of that country rising up. [00:25:24] Speaker 04: So if we reach some point, some undefined point, where it's no longer made up of the people rising up against their own government, but it's foreigners coming in to try to influence the government, the exception would not apply. [00:25:39] Speaker 00: Quinn and the other cases actually deal with people who aren't local to the place. [00:25:44] Speaker 00: So they don't really, to my mind, answer this question. [00:25:51] Speaker 00: So different tactics from different parts don't matter. [00:25:54] Speaker 00: Some participation elsewhere. [00:25:56] Speaker 00: And I guess the next question I have, and then I'll let you go to what other things you want to say, is [00:26:07] Speaker 00: In addition to different tactics, suppose that different threads of this uprising have different ultimate goals. [00:26:16] Speaker 00: The part that our hypothetical individual is in wants to overthrow the government and put in different people that they like better. [00:26:26] Speaker 00: And it's basically a typical uprising. [00:26:29] Speaker 00: There are some other people who say, well, we want [00:26:35] Speaker 00: anarchism or we want to annex to another country, but that isn't the way that this person feels. [00:26:42] Speaker 00: Does that make the extraditable person unable to rely on political offense? [00:26:51] Speaker 04: I think we would need more information about whether the goals of both of those threads are still local goals, and also whether the act then was related to that specific local goal. [00:27:03] Speaker 04: Under Quinn though, there is a geographical component, so if there were actions taken to annex another area. [00:27:10] Speaker 00: The geographic component is met here though, correct? [00:27:12] Speaker 00: Everybody's from Fallujah here. [00:27:14] Speaker 00: The person you're trying to extradite is from Iraq. [00:27:21] Speaker 00: And these events happened in his hometown. [00:27:24] Speaker 00: So we don't have someone coming from Italy to do something or from Syria to do something. [00:27:30] Speaker 00: He is local, correct? [00:27:32] Speaker 00: The AQI organization. [00:27:34] Speaker 00: Is he local? [00:27:35] Speaker 00: That's the question I'm asking. [00:27:37] Speaker 00: Yes, he is. [00:27:37] Speaker 00: Okay. [00:27:38] Speaker 00: So he meets the criteria if the uprising is local and what he's doing is intended to [00:27:49] Speaker 00: further that. [00:27:50] Speaker 00: So really the question it seems to me is what you're getting at is whether the uprising is actually a local uprising. [00:27:59] Speaker 04: The government argues both points that the uprising is not a domestic uprising because AQI is not a domestic organization and that the act of killing police officers is not in furtherance or incidental to the local insurgency. [00:28:14] Speaker 04: I'd like to talk about [00:28:16] Speaker 04: I think some fundamental principles before I get into the prongs. [00:28:20] Speaker 04: First, Quinn stands for the proposition that the political offense exception does not protect international terrorism. [00:28:28] Speaker 04: It does not protect exportation of political violence. [00:28:32] Speaker 04: It also establishes that it's the petitioner's burden to show that the political offense exception applies. [00:28:38] Speaker 04: And I think I heard Mr. Eisenberg say today there's no evidence that the exception does not apply. [00:28:42] Speaker 04: That is not the standard. [00:28:44] Speaker 04: The petitioners required to establish the essential elements of both of those prongs before the burden shifts to the government to show otherwise. [00:28:52] Speaker 04: I think there's also a disagreement here about what is the scope and the context of what the court should be looking at. [00:28:59] Speaker 04: because the petitioner urges the court to zoom in, really local, that this crime happened in Fallujah, involved local residents, although I'm not sure how much information is really in the record besides that the petitioner is a local resident. [00:29:16] Speaker 04: And I think that that position is contrary to Quinn, especially with regard to the second prong of Quinn. [00:29:23] Speaker 04: Quinn says that [00:29:25] Speaker 04: the courts have been willing to examine all of the circumstances surrounding the commission of the crime, and that in determining whether an act is causally or ideologically related, the courts can look to membership in an uprising group, similarity to other acts committed by the group, and a degree of control by a hierarchy within the group. [00:29:45] Speaker 04: So all this is inconsistent with a position that the court should limit its inquiry to this particular offense by this particular petitioner. [00:29:55] Speaker 04: And with that, Your Honor, the petitioner has not met his burden to show that either prong of the exception is met here. [00:30:02] Speaker 04: AQI was not part of a domestic political insurgency. [00:30:05] Speaker 04: The extradition courts [00:30:08] Speaker 04: Factual findings on this point are supported by the testimony in the expert report of Professor Whiteside. [00:30:15] Speaker 04: Those are subject to clear error review and the extradition court did not clearly air. [00:30:20] Speaker 04: According to Professor Whiteside and adopted by the extradition court, AQI was an official al-Qaeda franchise. [00:30:26] Speaker 04: It was not a group of indigenous Iraqis. [00:30:30] Speaker 04: It originally had a Jordanian leader. [00:30:32] Speaker 04: It was ejected from Afghanistan before moving into northern Iraq, before becoming an al-Qaeda franchise. [00:30:39] Speaker 04: It never had indigenous Iraqi leadership. [00:30:42] Speaker 04: After the death of the Jordanian leader, the next leader of the group was Egyptian. [00:30:46] Speaker 04: The leader of the province where Fallujah is located at the time of these crimes was a Syrian foreign fighter. [00:30:52] Speaker 04: And Judge Beatty referred to the point in the record where Professor Whiteside indicated that at the time these crimes occurred, that all the emirs in Fallujah would have been following the instructions and the directives of that local leader who was a Syrian foreign fighter and not an Iraqi. [00:31:12] Speaker 04: This international leadership is consistent with a Q eyes international presence and international leadership and because of that had a global agenda. [00:31:22] Speaker 04: Professor white sites testimony and report indicated that a Q I was responsive to higher level. [00:31:29] Speaker 04: higher-level leaders in Pakistan and that during this period the local AQI emirs in Fallujah worked under the Syrian leader and followed his instructions. [00:31:39] Speaker 04: Leading up to this time period, AQI conducted violent acts not only in Iraq but in other places including Jordan, Israel, and Turkey. [00:31:48] Speaker 04: The goal was not to change the composition of the Iraqi government but to take over the Iraqi lands as part of its mission to establish a transnational caliphate in the Levant region. [00:31:59] Speaker 04: Sort of getting back to Judge Graber's hypothetical, Professor Whiteside also noted evidence that in this one year period between August 2006 and August 2007, there was evidence that 700 foreign fighters had come into Iraq on behalf of AQI to participate in the violence, which is another indication that this is not a domestic uprising. [00:32:22] Speaker 04: As I mentioned, Quinn discussed that an uprising is indigenous people rising up against their own government, and that's not what AQI was doing. [00:32:31] Speaker 04: The group was capitalizing on turmoil in Iraq to further its own mission. [00:32:36] Speaker 02: It was not working. [00:32:36] Speaker 02: Would it be fair to say that the incident test in Quinn is met because there is that Sunni insurgency or disturbance in 2006, but that the real issue is whether or not there's a difference between the offense that El-Nori is charged with and that [00:32:52] Speaker 02: 2006 Sunni insurgents. [00:32:54] Speaker 04: In the government's view, there is no domestic insurgency within Quinn because we're referring only to a Q. I. There was a larger Sunni insurgency at the time. [00:33:04] Speaker 04: It wasn't part of that. [00:33:05] Speaker 04: But moving on to the second prong, Professor Whiteside also opined that [00:33:10] Speaker 04: This tactic of targeting police officers made AQI an outlier group within all the different SUNY insurgency groups. [00:33:18] Speaker 04: And at some point, the other SUNY insurgency groups actually became an armed conflict with AQI because of this practice of targeting police officers which was not welcomed by the other insurgent groups. [00:33:33] Speaker 04: And Mr. Eisenberg indicated that the second prong may not be disputed here, but the government does heavily dispute the second prong. [00:33:42] Speaker 04: Because AQI was not a domestic political uprising, its goals were international goals, and it was attacking police officers who were conducting regular law enforcement activities. [00:33:55] Speaker 04: The petitioner has not met his burden to show that [00:33:59] Speaker 04: these killings of police officers were incidental to the SUNY insurgency outside of AQI. [00:34:11] Speaker 04: I'd like to briefly address the concern about the personal monetary gain. [00:34:16] Speaker 04: There is evidence in the record that the petitioner received some level of payment after one of these murders. [00:34:23] Speaker 04: In the report and recommendation in the underlying habeas matter, the magistrate judge relied on that in finding that the political offense exception did not apply. [00:34:31] Speaker 04: That is another basis it does not apply, although certainly we don't have any information as Mr. Eisenberg indicated about what specifically that payment was for. [00:34:42] Speaker 04: I'd also briefly just like to address the third and fourth issues, the rule of non-inquiry, as well as the speculation that the petitioner may face additional charges once he's in Iraq. [00:34:56] Speaker 04: Both of these concerns are issues that are left for the Secretary of State. [00:35:02] Speaker 04: No court, no federal court has ever created an exception to the rule of non-inquiry. [00:35:07] Speaker 04: to allow an exception to extradition based on humanitarian concerns. [00:35:14] Speaker 04: In fact, the Supreme Court in Munaf v. Garan dealt with this issue as it related to Iraq. [00:35:21] Speaker 04: In that case, there were two U.S. [00:35:24] Speaker 04: citizens who were held in Iraq by the U.S. [00:35:27] Speaker 04: military for crimes committed there. [00:35:29] Speaker 04: And they brought a habeas petition to challenge their transfer to Iraqi authorities. [00:35:35] Speaker 04: And as part of that, [00:35:37] Speaker 04: expressed concern that they would be tortured. [00:35:39] Speaker 04: The court, of course, expressed concern that that may happen, but said that that was a consideration that was left to the political branches and not to the courts. [00:35:51] Speaker 04: Because the political branches, in particular here the Secretary of State, have leverages and can get diplomatic assurances that the courts are unable to. [00:35:59] Speaker 04: So the government would have asked [00:36:01] Speaker 04: this court not to create this exception for the first time ever in this case, especially given that the Supreme Court has already addressed this issue in relation to Iraq. [00:36:11] Speaker 04: And finally, the issue about whether the petitioner may be charged with additional offenses. [00:36:16] Speaker 04: In all of the years since this extradition request was submitted, Iraq has not ever submitted [00:36:25] Speaker 04: any follow-up request. [00:36:27] Speaker 04: And certainly speculation that the petitioner may face further charges in the future cannot prevent his extradition on the crimes for which he is already charged. [00:36:36] Speaker 04: If there were to be some future violation of the treaty, the State Department would address that. [00:36:45] Speaker 04: And unless the court has any further questions, the government would ask the court to [00:36:53] Speaker 04: pass the baton to the Secretary of State, allow the Secretary to continue the extradition process, and affirm the denial of the habeas petition. [00:37:00] Speaker 04: Thank you. [00:37:01] Speaker 03: Thank you. [00:37:04] Speaker 03: Mr. Eisenberg, you said you didn't want rebuttable. [00:37:06] Speaker 03: I'll give you one last chance. [00:37:08] Speaker 03: Would you like a couple of minutes? [00:37:15] Speaker 01: I appreciate your consideration. [00:37:16] Speaker 01: I will remark this with respect to what [00:37:21] Speaker 01: was just said about leaving it up to the Secretary of State to determine whether extradition should occur. [00:37:30] Speaker 01: It sounds like it's going to be a foregone conclusion. [00:37:33] Speaker 01: I don't know that that's necessarily going to be there's going to be any guarantee that the State Department in this case at this time will be able to consider this case and determine on the grounds that I'm prepared to argue to the State Department [00:37:50] Speaker 01: there should be no extradition. [00:37:53] Speaker 01: And that is because the State Department currently has evidenced its position on whether it's going to allow people to be extradited or turned over to another country. [00:38:05] Speaker 01: And that is what I see that happen currently with respect to the extradition or the, I guess I'll call it the extradition of the detainees [00:38:17] Speaker 01: who had been recently arrested, they were extradited, if you will, to El Salvador. [00:38:26] Speaker 01: And that was in March of this year, where the Secretary of State approved the transfer of the detainees to El Salvador, and in fact applauded the idea that El Salvador was willing to take these people who had been not convicted of anything. [00:38:43] Speaker 01: There was a public thanks issued by the Secretary of State [00:38:47] Speaker 01: to the Salvadorian president stating that housing inmates in El Salvador saved the United States taxpayers money. [00:38:55] Speaker 01: So I have less confidence, Your Honor, that my client, if Your Honors are going to determine that this case should go forward, he's going to get a fair shot in the State Department. [00:39:08] Speaker 01: That is a concern, obviously, that I have. [00:39:18] Speaker 01: Other matter that I would like to indicate and respond to is that it's not just a case of whether Iraq hasn't determined whether it intends to investigate my client for other crimes. [00:39:31] Speaker 01: It claims that he's under investigation for other offenses. [00:39:36] Speaker 01: And as I read to you a moment ago, under their position with respect to what they intend to do, they will be investigating him [00:39:47] Speaker 01: without any doubt, Your Honor. [00:39:50] Speaker 01: I think that's just the way the process is going to work. [00:39:53] Speaker 01: And I have less confidence than my colleague that he's going to be given the rights of coming back to a court to determine whether he should, whether habeas corpus is going to be available to him. [00:40:07] Speaker 01: It just won't be. [00:40:09] Speaker 01: Thank you, Your Honor. [00:40:10] Speaker 03: Thank you. [00:40:11] Speaker 03: Counsel, thank you both for your arguments this morning. [00:40:14] Speaker 03: They were very helpful. [00:40:15] Speaker 03: Ms. [00:40:15] Speaker 03: Basanson, thank you for [00:40:17] Speaker 03: being here during the shutdown. [00:40:19] Speaker 03: This case is submitted and we are adjourned.