UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT



                             No. 04-7731



LIOR ATUAR, a/k/a Itamar Sinai, a/k/a Daniel
Rozen,

                                            Petitioner - Appellant,

           versus


UNITED STATES OF AMERICA,

                                             Respondent - Appellee,

           and


MARTY    ANDERSON,    Federal    Correctional
Institution, Beckley; JAMES D. DAWSON,

                                                         Respondents.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CA-04-17-5)



Argued:   March 16, 2005                Decided:     November 23, 2005



Before TRAXLER and DUNCAN, Circuit Judges, and Frederick P. STAMP,
Jr., United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed by unpublished opinion.       Judge Stamp announced the
judgment of the court and wrote the opinion, in which Judge Traxler
concurred except as to Part IV. Judge Traxler wrote a concurring
opinion.    Judge Duncan wrote an opinion concurring in Judge
Traxler’s opinion and concurring in the judgment.



ARGUED: Edward Henry Weis, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia,
for Appellant.     Michael Lee Keller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.    ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Jonathan D. Byrne, Appellate Counsel, Charleston,
West Virginia, for Appellant.       Kasey Warner, United States
Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
STAMP, District Judge:

     Petitioner, Lior Atuar, a/k/a Itamar Sinai, a/k/a Daniel Rozen

(“Atuar”), is wanted in the Republic of Turkey (“Turkey”) on

charges related to the distribution of heroin.                Following the

certification of his extraditability by United States Magistrate

Judge R. Clarke VanDervort, petitioner Atuar filed a petition for

writ of habeas corpus with the United States District Court for the

Southern District of West Virginia at Beckley.            Atuar’s petition

was denied, and he filed this appeal.

     On appeal, Atuar contends that the certificate issued by the

magistrate judge was improperly based upon the coerced confession

of an alleged co-conspirator, Fahri Yasin (“Yasin”).           Atuar argues

that admission of coerced testimony in an extradition hearing

violates the Due Process Clause of the United States Constitution,

Article 14 of the United Nations Convention Against Human Torture

(“CAT”), and the United States’ extradition treaty with Turkey.

Accordingly, Atuar maintains that his extradition is not founded on

probable    cause   and   requests   that   his   case   be   remanded   with

instructions to grant habeas corpus relief.

     For reasons stated below, we affirm the district court’s

finding of probable cause and deny the petitioner’s habeas corpus

petition.




                                     3
                                 I.

     Atuar and co-defendants Hasan Erkus (“Erkus”) and Yasin were

charged in an indictment with selling, purchasing and acting as

intermediate for the sale and purchase of heroin on May 3, 1991.

J.A. 97.1

     On May 11, 1991, a protocol was entered by Turkish police

indicating that Atuar had been detained, but that he had escaped.

J.A. 119.2   On May 12, 1991, one day after Atuar had escaped, Yasin

signed a written confession explaining the alleged conspiracy and

detailing his efforts to help police catch Atuar before the escape.

According to the May 12, 1991 confession, Yasin told the Smuggling

Inquiry Bureau of Turkey on or after May 3, 1991, that Atuar

intended to purchase the heroin and would return to Turkey on May



     1
      The indictment was issued on May 22, 1991 by the Office of
Public Prosecutor against Atuar and co-defendants Yasin and Erkus,
and it was addressed to the Chairman of the Penal Court in Antalya,
Turkey.   Atuar is identified in the indictment as “Itamar Siani.”
According to Turkish officials, Atuar went by the name “Daniel
Rozen” for purposes of selling and buying heroin, and was
originally taken into custody under the name “Itamar Siani,” for
which he had a false identification card. See J.A. 123-25. In the
United States, Atuar went by the name “Daniel Rozen.” See United
States v. Rozen, 

(11th Cir. 2001). An “Additional
Indictment” was issued June 4, 1991 for another co-defendant,
Efrahim Dahan.
     2
      A new warrant for Atuar’s arrest was issued on May 16, 1991
and again on May 5, 1992. J.A. 121 and 123. The 1991 and 1992
warrants reflect Atuar’s use of aliases. The first is issued for
“Itamar Sinai” and the second for “Lior Atuar.” Following these
warrants, Turkish officials included in their extradition request
a “Record of Identification Based on Photographs” showing that
“Itamar Sinai” and “Lior Atuar” are, in fact, the same individual
as stated above. J.A. 124-126.
                                4
10th or May 15th.        J.A. 133.           Under Yasin’s direction, Atuar

arrived at the Antalya Airport on May 10, 1991, was identified by

Yasin as a co-conspirator, and was taken into custody by Turkish

police.

     Following Atuar’s escape, Yasin appeared before Judge Hasan

Yasar Oktay and stated, “I Fahri Yasin am for 15 days in the

superintendence.      By God!      I am not well and healthy to give a

statement.”      J.A. 127.    According to Judge Oktay’s “Examination

Protocol,” Yasin was informed that heroin was taken from the trunk,

and he responded, “By God! I can say nothing.”              J.A. 127.   Yasin

was then given his signed statement from May 12, 1991, and he

responded, “By God!     Sir, I cannot give a statement.”          

1991, Yasin gave another statement to the public

prosecutor in charge of prosecuting the alleged heroin conspiracy.

According   to   a   record   of   the   proceeding,    a   Turkish   official

explained to Yasin the offense with which he was being charged and

asked if Yasin had a defense.            Yasin responded, “I am not in a

position to be examined.”       J.A. 134.       Nevertheless, Yasin admitted

to owning the car that had contained the heroin in question.

However, Yasin did not admit to owning the heroin and only stated

that he returned to Antalya to buy a house.           He stated that he knew

co-defendant Erkus because he had sold him furniture.             

1991, Yasin appeared before the Izmir State

Security Court, and said, “My statements which have been given both


                                         5
at the Procecutors [sic] office, at the Minor Court of Petty

Offences [sic], both at the Antalya First Criminal Court, which

gave a decision for incompetency, are right.       I accept all of

them.”    J.A. 135.   In the same testimony, Yasin identified Atuar

and remarked, “I have been kept 15 days in torture.     I could not

flee.    I wonder, how [Atuar] has fled.”   J.A. 137.   Upon reading

the various evidence, testimony, and documents supporting the

government’s case against Yasin, Yasin’s attorney stated, “We do’nt

[sic] accept the evidence which are [sic] against us.”

     On March 20, 1992, the Izmir State Security Court issued a

decision regarding Yasin finding that Yasin was caught by police on

May 3, 1991, when he attempted to retrieve his car which contained

heroin in the trunk.    The State Security Court further found that

Atuar contacted Yasin to retrieve the heroin and that Atuar was

apprehended at the Antalya Airport.   The State Security Court held

that Yasin’s testimony was supported by statements from the Dedeman

Hotel garage caretaker and a night manager at the hotel, by

documents related to a rental car from Avis under Atuar’s alias

“Sinai Itamar,” and by Yasin’s relationship with Atuar.    J.A. 157.

The State Security Court then granted Yasin’s request for reduction

in his sentence based on provisions in the Turkish Penal Code, and

sentenced Yasin to serve five years in prison and payment of a

fine.    J.A. 167.

     On July 11, 2003, the United States filed a complaint on

behalf of Turkey seeking the extradition of Atuar pursuant to 18
                                6
U.S.C. § 3184 and the Extradition and Mutual Assistance in Criminal

Matters Treaty between the United States and the Republic of

Turkey.3     The complaint was based on a request by Turkey for

Atuar’s extradition.         Turkey included with its request applicable

articles of the Turkish Criminal Code, a laboratory report on the

narcotics found in the trunk of Yasin’s car, and records of

indictments,      hearings    and    court     proceedings   described   above.

Turkey     also   included     copies     of    photographs    of   Atuar   for

identification      purposes        and   submitted    supplemental      records

concerning Atuar’s identity, including the minutes from Yasin’s

testimony confirming Atuar’s identity.             J.A. 84-171 and 186-209.4

     Turkey’s extradition request was submitted to United States

Magistrate Judge VanDervort, along with a declaration of the

Attorney Adviser in the Office of the Legal Adviser for the

Department of State charged with the extradition of Atuar.5                   On

     3
      The Extradition and Mutual Assistance in Criminal Matters
Treaty between the United States and the Republic of Turkey was
entered into force on January 1, 1981. See Treaty on Extradition
and Mutual Assistance in Criminal Matters, June 7, 1979, U.S.-
Turk., 32 U.S.T. 3111 (hereinafter “Extradition Treaty”).
     4
      These documents were provided in the original Turkish as well
as in English translation. The State Security Court Judge provided
a cover letter summarizing the case for extraditing Atuar as
detailed by the evidence submitted. See J.A. 84-87.
     5
      The parties stipulated, and we agree, that the United States
Magistrate Judge for the Southern District of West Virginia had
jurisdiction over the extradition hearing because at the time the
petition was formally filed against Atuar, he was incarcerated at
the FCI-Beckley in Beaver, West Virginia. J.A. 235; see Pettit v.
Walshe, 

, 211 (1904) (extradition complaint properly
brought where defendant resides). Atuar was sentenced to 70-months
                                          7
November   19,   2003,   United   States   Magistrate   Judge   VanDervort

conducted a hearing to certify Atuar’s extraditability pursuant to

18 U.S.C. § 3184.

     In opposition to the United States’ complaint for extradition,

Atuar attached a November 13, 2003 affidavit from Yasin retracting

his 1991 identification of Atuar as a co-conspirator.              In the

affidavit, Yasin stated that, following his arrest at the Antalya

hotel, Turkish authorities had hung him by his hands, beaten him,

deprived him of sleep and subjected him to electric shocks.          Yasin

stated that he did not provide authorities with the names of “the

real person connected to the heroin,” fearing harm to his family

and himself from the actual perpetrators.         Yasin stated that he

identified Atuar because he felt Atuar, as a citizen of a foreign

country, had a good chance of escaping Turkish authorities.          Yasin

concluded in his affidavit that Atuar had nothing to do with the

heroin in the trunk of the car which served as the basis for

charges against Atuar.

     After considering Yasin’s November 2003 retraction, the United

States Magistrate Judge found that reasonable grounds existed to

believe that Atuar committed the crimes with which he is charged in



incarceration with five years of supervised release after pleading
guilty to attempting and conspiring to distribute cocaine in
violation of 21 U.S.C. § 846. J.A. 19. Atuar had been indicted in
the United States District Court for the Southern District of
Florida under the assumed name “Daniel Rozen.” 

affirmed by unpublished decision on February 16, 2001. See

.
                                 8
Turkey, and therefore, issued a memorandum opinion certifying

Atuar’s extraditability.     Specifically, the magistrate judge held

that the Turkish government had satisfied the documentary and other

procedural requirements of the Extradition Treaty with the United

States, and that Turkey had sustained its burden of establishing

probable   cause   to   believe    that   Atuar   committed   the   alleged

violation of the Turkish Criminal Code.           Finally, the magistrate

judge issued a stay of the certification to enable Atuar to file a

petition for writ of habeas corpus within thirty days of that

court’s memorandum opinion.

     Atuar filed a timely habeas corpus petition with the United

States District Court for the Southern District of West Virginia

arguing that the magistrate judge had improperly relied on coerced

testimony of co-defendant Yasin to find probable cause to certify

Atuar’s extradition.      The district court reviewed the magistrate

judge’s    opinion,     accepted    the   magistrate    judge’s     factual

determinations, found that Yasin’s testimony was lawfully admitted,

and affirmed the magistrate judge’s finding of probable cause.

     Atuar filed a timely notice of appeal on November 8, 2004.



                                    II.

     A federal district court has jurisdiction to conduct a limited

review of an extradition proceeding pursuant to a petition for

habeas corpus.     Fernandez v. Phillips, 

, 312 (1925);


                                     9
see also Plaster v. United States, 

, 347 (4th Cir.

1983).     We review the district court’s final order denying the

petitioner’s    habeas      corpus     petition    pursuant    to     28   U.S.C.

§ 2253(a).

     In a habeas corpus review of an extradition hearing, a court

considers whether the magistrate judge certifying the extradition

had jurisdiction, whether the treaty at issue covers the offense

charged and whether there was competent evidence introduced at the

hearing “warranting the finding that there was reasonable ground to

believe the accused guilty.”           Fernandez at 312.       In addition, a

reviewing court may consider whether the petitioner’s extradition

would violate certain constitutional rights.               See Plaster at 349.

     On appeal, the petitioner argues that the United States’

introduction    of    the    coerced    testimony    of    Yasin     at    Atuar’s

extradition hearing violated his due process rights under the

Constitution.    In the alternative, the petitioner argues that a

magistrate judge is bound by Article 15 of CAT, which bars evidence

obtained by torture from all judicial proceedings.                  Finally, the

petitioner   argues    that    the   introduction     of    coerced    testimony

violates the Extradition Treaty, itself.

     The    petitioner      concedes    that   the   magistrate       judge   had

jurisdiction and that the crime for which extradition is sought is

covered by the Extradition Treaty.                Accordingly, this Court’s

review is limited to considering the petitioner’s due process claim

and whether there was “any evidence” introduced at the hearing
                              10
“warranting the finding that there was reasonable ground to believe

the accused guilty.”     Fernandez at 312.   When considering whether

there was “any evidence,” we must determine whether evidence

establishing probable cause at an extradition hearing must pass

muster pursuant to our Constitution or Article 15 of CAT.



                                   III.

     We first turn to the petitioner’s constitutional argument,

which relies on the Fifth Amendment’s due process clause.            The

Supreme Court warns that “any rule of constitutional law that would

inhibit the flexibility of the political branches of government to

respond to changing world conditions should be adopted only with

the greatest caution.”      Mathews v. Diaz, 

, 81 (1976).

     Nevertheless,     we   have   long   held   that   foreign   policy

implications of a refusal to extradite are insufficient to divest

this court of its authority to grant habeas corpus relief when a

petitioner’s valid constitutional rights would be violated by

extradition.   Plaster at 350.     Keeping these obligations in mind,

we review the nature of the Fifth Amendment protections available

to Atuar in this case.



                                    A.

     In determining that Atuar’s constitutional rights were not

violated, the district court relied primarily on United States v.


                                    11
Verdugo-Urquidez, 

(1990), a Fourth Amendment case.

Thus, the district court focused on the fact that the testimony

which Autuar sought to exclude was obtained from a non-citizen by

Turkish officials operating in Turkey.    However, Verdugo-Urquidez

specifically distinguishes Fourth Amendment protections from Fifth

Amendment protections, “which [were] not at issue in [that] case.”

the Fourth Amendment prevents unreasonable

searches and seizures by government agents presumably acting in the

field, the Fifth Amendment is fundamentally a “trial right,” and

protects an individual from admission of certain evidence at trial.

relied, and continues to rely, on the

Fifth Amendment, arguing that the constitutional violation occurred

when coerced testimony was introduced by the United States in an

extradition hearing conducted within our federal court system.

Accordingly, we do not believe that Verdugo-Urquidez is dispositive

of Atuar’s Fifth Amendment claim, and we must turn to the Fifth

Amendment, itself, to determine whether the petitioner’s argument

has merit.



                                 B.

      The Fifth Amendment protects “any person” from being “deprived

of life, liberty, or property, without due process of law.”    U.S.




                                 12
Const. amend. V.6     Despite the plain meaning of the phrase, “any

person,” the Court has consistently held that the Fifth Amendment

is generally inoperative beyond territory over which the United

States exercises “plenary and exclusive jurisdiction.”                     Rasul v.

Bush, 

, 

(2004); see also Johnson v.

Eisentrager, 

, 783 (1950); Verdugo-Urquidez at 269.7

However, an alien within the United States’ plenary and exclusive

jurisdiction enjoys Fifth Amendment protections, “[e]ven one whose

presence in this country is unlawful, involuntary, or transitory

. . .”    Mathews v. 

; see also Wong Wing v.

United    States,   

,    238       (1896)(aliens       “within    the

territorial jurisdiction” of the United States are protected by the

due   process   clause).      Accordingly,          Atuar,   who   is    subject   to

statutory proceedings against him in the United States, enjoys

certain due process protections.              

us to adopt an exclusionary rule based on


      6
      The Fifth Amendment also protects a defendant from being
“compelled in any criminal case to be a witness against himself.”
This right is not at issue here because Atuar is not seeking to
suppress his own confession.
      7
      We recognize that the Court has left open the possibility
that both Fourth and Fifth Amendment protections could be extended
to an alien in a foreign land where the person at issue had
significant connections to the United States at the time the
alleged violation occurred. Central to the holding in Verdugo-
Urquidez was the fact that the defendant “had no previous
significant voluntary connection with the United States.” 

added). The defendant does not argue that Yasin had
any connections with the United States when he was allegedly
tortured, and therefore, we need not address this issue here.
                                         13
our Constitution against the introduction of coerced testimony in

an extradition hearing.                 While we acknowledge that a magistrate

judge        should     consider       all    relevant       circumstances      surrounding

evidence in certain circumstances as discussed below, we decline to

read        the   general     requirements       of      due    process   to   require    the

application of an exclusionary rule in this instance.

       As a general principle, due process prohibits the United

States from using involuntary statements in a criminal proceeding

that were obtained through torture or other mistreatment.                           Jackson

v. Denno, 

, 377 (1964); see also In Re Guantanamo

Detainee Cases, 

, 447 (D.D.C. 2005).                            However,

an extradition hearing is not a “criminal proceeding.”                           Desivla v.

DiLeonardi,           

,   868     (7th      Cir.    1999)(noting      that

extradition hearings are handled pursuant to civil rules);                              United

States v. Yousef, 

, 142 n.66 (2d Cir. 2003)(not a

criminal proceeding); Martin v. Warden, Atlanta Penitentiary, 

, 828 (11th Cir. 1993)(noting that neither the Federal

Rules of Criminal Procedure nor the Federal Rules of Evidence are

applicable         to    extraditions).             By    distinguishing        between    an

extradition           hearing     and    a    criminal         proceeding,     courts    have

consistently           held     that    an    accused      is     not   afforded    certain

constitutional rights in an extradition hearing.8


        8
      For example, the Sixth Amendment right to a speedy trial does
not apply to extradition proceedings. Martin at 829; Sabatier v.
Dabroski, 

, 869 (1st Cir 1978); Jhirad v. Ferrandina,

, 485 n.9 (2d Cir. 1976). Moreover, certain evidence
                                 14
     While an accused has certain due process rights in extradition

proceedings,9 such proceedings are not designed to determine the

guilt or innocence of the accused, and therefore, certain due

process protections are simply not applicable.       Merino v. United

States Marshal, 

, 12 (9th Cir. 1963); Sayne v. Shipley,

, 685 (5th Cir. 1969); see also Coleman v. Burnett, 

, 1201-02 (D.C. Cir. 1973).       Extradition hearings have

never required evidence sufficient to convict and are limited to

establishing probable cause. Peroff v. Hylton, 

, 1249

(4th Cir. 1976)(certification of extradition consists of an inquiry

into presence of probable cause).10     Instead, a magistrate judge

conducting   an   extradition   certification   proceeding   looks   for


ordinarily excluded in a criminal proceeding may be admitted in an
extradition hearing. Bovio v. United States, 

(7th
Cir. 1993)(accomplice testimony and hearsay admissible in
extradition hearing); Mainero v. Gregg, 

(9th Cir.
1999)(hearsay evidence admissible); United States ex rel. Klein v.
Mulligan, 

(2d Cir. 1931)(evidence need not pass
technical rules governing admissibility in criminal trials).
Finally, an accused cannot introduce evidence in the nature of a
defense, such as insanity, Charlton v. Kelly, 

, 462
(1913), or alibi, Desmond v. Eggers, 

, 505-506 (9th Cir.
1927).
     9
      An accused has a due process right to enforce the terms of a
plea bargain in the context of extradition. 

(promise not to extradite); see also Geisser v. United States,

, 864 (5th Cir. 1975)(promise to use best efforts to
avoid extradition).
     10
      Indeed, the Extradition Treaty at issue in this case
specifically requires evidence submitted at a hearing to be “such
evidence as, according to the laws of the Requested Party, would
justify arrest and committal for trial . . .” Extradition Treaty,
Art. 7, (1)(c).
                                   15
evidence “sufficient to cause a person            of    ordinary     prudence and



caution to conscientiously entertain a reasonable belief of the

accused’s guilt.”      Coleman at 1201-02; Peroff at 1249.

     As stated above, the Supreme Court has frequently “cautioned

against    expanding    currently     applicable        exclusionary     rules   by

erecting additional barriers to placing truthful and probative

evidence” before a jury.        

(quoting Lego

v. Twomey, 

, 488-489 (1972))(internal quotation marks

omitted).    This warning applies with greater force in the context

of an extradition hearing where evidence is presented to a judge

rather than a jury.      As this Circuit has held, “cases involving a

conflict    between    the   government’s       power    to    extradite   and    an

individual’s asserted constitutional rights are not well suited to

formalized    proceedings      in   which     rigid    rules    of   evidence    and

procedure are employed.”        Plaster at 349.

     We    therefore    hold    that,   when     reviewing      a    petition    for

extradition for the purpose of certification, a magistrate judge is

not constitutionally barred from considering evidence submitted by

the requesting state.        See Collins v. Loisel, 

, 315-16

(1922)(evidence       submitted     through    extradition       request   deemed

truthful for determining probable cause); In Re Atta, 

, 1051 (D.N.Y. 1989)(“The court must look at circumstances as

a whole to determine whether probable cause exists.”); see also

United States v. Kin-Hong, 

, 120 (1st Cir. 1997)(mere
                                16
existence        of   unbiased    hearing      before     independent     judiciary

satisfies     due     process).     Of    course,       due   process    requires   a

magistrate judge to consider such evidence in its proper context.

Atta at 1051; Gill at 1046.11 In certain circumstances, due process

also requires the magistrate judge to consider evidence submitted

by the accused that explains or negates probable cause. See, e.g.,

Hooker v. Klein, 

, 1369 (9th Cir. 1978); Gill at 1046.

       Here, Atuar’s extradition certification hearing was conducted

within the appropriate constitutional parameters.                   Specifically,

the magistrate judge correctly considered evidence presented by the

accused through which Atuar sought to explain the 1991 testimony of

Yasin.      The magistrate judge then explained his finding that the

1991 testimony was more reliable than the 2003 retraction. This is

all that due process requires in an extradition hearing.



                                         IV.

       We now turn to the petitioner’s argument that CAT applies to

exclude evidence presented by a foreign nation for the extradition

of an individual pursuant to the Extradition Treaty at issue in

this     case.        Specifically,      the   petitioner       argues    that   the

       11
      The probable cause standard in an extradition hearing is not
“toothless.”   Kin-Hong at 121.    Due process requires that the
magistrate judge weigh each piece of evidence offered by the
requesting country.   See Bingham v. Bradley, 

, 517
(probable cause in extradition hearing requires “competent and
adequate evidence”); see also Kin-Hong at 121 (“a confession
obtained by duress is inherently unreliable and would be given
little weight even if the confession were authenticated”).
                                          17
affirmative language of CAT’s Article 15 does not require further

enabling     legislation       to   effectively     prohibit     a   court     from

considering evidence obtained by torture.            The petitioner contends

that the United States Senate’s non-self-executing declaration is

not controlling because (1) the Senate may only give advice and

consent, not change the terms of a treaty, and (2) even if the

Senate had the constitutional authority to declare CAT non-self-

executing, such a declaration is intended only to prevent a private

cause of action, and does not affect the United States’ obligation

under     international    law      to   refrain   from   considering       certain

evidence.

     Even    if   CAT   were    self-executing,      or   at   the   very    least,

applicable as a constitutionally ratified treaty pursuant the

habeas corpus statute,12 the proscriptions set forth in CAT would
     12
      This Circuit has previously rejected the argument that 28
U.S.C. § 2241 transforms the Geneva Convention, a non-self-
executing treaty, into a judicially enforceable “private right of
petition.” Hamdi v. Rumsfeld, 

, 468-69 (2003), vacated
by Hamdi v. Rumsfeld, 

(2004)(hereinafter “Hamdi II”).
However, Hamdi II vacated this Circuit’s holding, finding that the
writ of habeas corpus “allows the Judicial Branch to play a
necessary role in maintaining this delicate balance of governance,
serving as the important judicial check on the Executive’s
discretion in the realm of detentions.” 

Hamdi
was reversed by Hamdi II on constitutional rather than treaty
grounds, both the plurality and concurring opinions in Hamdi II
relied, in part, on the non-self-executing Geneva Convention to
articulate the petitioner’s rights. See e.g., Hamdi II at 2642
(relying on Geneva Convention to find “detention may last no longer
than active hostilities”) (plurality); 

government required to show “detention conforms to the laws of
war”)(Souter, J. and Ginsburg, J., concurring).        In Goldstar



                                          18
not help the petitioner in this case.              Article 15 of CAT provides

in pertinent part:

     any statement which is established to have been made as
     a result of torture shall not be invoked as evidence in
     any proceedings, except against a person accused of
     torture as evidence that the statement was made.

As a preliminary matter, we recognize a possible ambiguity in the

magistrate judge’s findings.           His opinion indicates that Yasin was

likely tortured at the time he gave certain testimony: “It is

evident from the documents of proceedings in Turkey in 1991 that

Mr. Yasin was interrogated and tortured shortly after his arrest on

May 3, 1991, and at the time he made his May 12 1991, statement.”

J.A. 39 (emphasis added).             However, the magistrate judge later

finds   that    “there     is    no   evidence     corroborating    Mr.    Yasin’s

contention     that   he   was    subject     to   torture   when   he    made   his

statement in May, 1991.”          J.A. 39.

(Panama) S.A. v. United States, 

, 969 (4th Cir. 1992),
this Circuit recognizes that all “treaties, even NSE treaties set
forth substantive rules of conduct . . . ,” though the latter do
not provide a defendant with a right of action.        

Argentine Republic v. Amerada Hess Shipping Corp., 

, 442 (1989))(emphasis added). Accordingly, we recognize
the possibility that a habeas corpus petition may require a court
to review a particular detention in light of a non-self-executing
but constitutionally ratified treaty. See Ogbudimkpa v. Ashcroft,

, 218, n. 22 (3d Cir. 2003)(superceded by statute on
other grounds). As The Federalist states, “Laws are a dead letter
without courts to expound and define their true meaning and
operation. The treaties of the United States to have any force at
all, must be considered as part of the law of the land. Their true
import as far as respects individuals, must, like all other laws,
be ascertained by judicial determinations.” The Federalist No. 22
(Alexander Hamilton).



                                         19
       In reviewing the record, we do not believe that the petitioner

“established” that Yasin’s statements were made “as the result of

torture” as required to invoke the protections of Article 15 of

CAT.   While we recognize that Yasin declared in open court that he

had been kept in torture for fifteen days, the context of his

statements is important.          At the time of the statement, Yasin was

explaining    to   the        Turkish   court      his   inability   to   escape.

Accordingly, the word is used idiomatically rather than literally,

and does not establish torture.

       Moreover, Yasin confirmed his identification of Atuar before

public prosecutors, again before the Minor Court of Petty Offenses

and again before the Antalya First Criminal Court.                    J.A. 137.

After his case was transferred to the Izmir State Security Court,

Yasin once again confirmed his identification of Atuar.                   At this

time, Yasin was several months removed from the incidents of his

initial detention, he was represented by an attorney and his case

was reviewed by a three-judge panel.               J.A. 167.    After reviewing

Yasin’s   testimony      in    light    of   the   evidence   presented   at   the

hearing, the Izmir State Security Court found Yasin’s testimony

identifying Atuar to be competent, true and supported by the

evidence.    

of an extradition hearing where

evidence presented by the requesting country is presumed competent,

we must give great weight to the factual determinations of the




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three   tribunals,     which   independently    reviewed   evidence   and



testimony in Yasin’s case.        See Quinn v. Robinson, 

,

815 (9th Cir. 1986).

     The fact that Yasin waited eleven years before retracting his

statement when he had several occasions to do so at an earlier date

is highly indicative that Yasin’s confession was not, in fact,

induced by torture.    In addition, because the extradition hearing

was conducted pursuant to a valid extradition treaty, the United

States magistrate judge is required to give appropriate weight to

State Penal Court’s review of Yasin’s confession in which they

indicated that the facts were “confessed during interrogation,”

“verified by the records prepared by those authorized to serve as

public officials,” and “understood” to be “correct.”        J.A. 113.

     Accordingly,     we   find    in    the   alternative that Atuar’s

extradition hearing did not violate Article 15 of CAT, and that the

magistrate judge did not err in certifying Atuar’s extradition.



                                    V.

     Because we find that Atuar is not imprisoned in violation of

his rights under the United States Constitution or United Nations

Convention Against Human Torture, we affirm the final judgment of

the District Court denying the Atuar’s habeas corpus petition, for




                                    21
the reasons stated above.

                                                                AFFIRMED

TRAXLER, Circuit Judge, concurring:

      I concur in parts I, II and III of Judge Stamp’s opinion, as

well as the result reached in Part IV.        However, I would reject

Atuar’s argument that the lower court violated Article 15 of the

Convention Against Torture (“CAT”) on the grounds that the CAT is

not self-executing.

      “International treaties are not presumed to create rights that

are   privately   enforceable”   in    the   absence   of   implementing

legislation from Congress.       Goldstar (Panama) S.A. v. United

States, 

, 968 (4th Cir. 1992). A self-executing treaty

is one that “evidences an intent to provide a private right of

action,” 

not require “domestic legislation

. . . to give [it] the force of law in the United States,” Trans

World Airlines, Inc. v. Franklin Mint Corp., 

, 252

(1984).   Conversely, non-self-executing treaties “do not create

judicially-enforceable rights unless they are first given effect by

implementing legislation.” Auguste v. Ridge, 

, 132 n.7

(3d Cir. 2005); see United States v. Thompson, 

, 1066

(11th Cir. 1991) (“[A] treaty must be self-executing in order for

an individual citizen to have standing to protest a violation of

the treaty.”).




                                  22
      On October 27, 1990, when the Senate adopted a resolution of

advice and consent to ratification of the CAT, it appended a

declaration that the provisions of articles 1 through 16 of the CAT

are not self-executing.         See 136 Cong. Rec. S17486-01, S17492

(1990).    This declaration reflected the intent of the executive

branch as well.        President Reagan, who signed the CAT, sent the

treaty to the Senate for approval with a statement that “any

further implementation” should be left “to the domestic legislative

and judicial process” and recommended that the Senate therefore

adopt a declaration “that the provisions of Articles 1 through 16

of [the CAT] are not self-executing.”         See Ogbudimkpa v. Ashcroft,

, 212 (3d Cir. 2003) (recounting ratification history

of the CAT).     Thus, I would conclude that the CAT is not self-

executing.    See, e.g., Raffington v. Cangemi, 

, 903

(8th Cir. 2005); Castellano-Chacon v. INS, 

, 551 (6th

Cir. 2003); Saint Fort v. Ashcroft, 

, 202 (1st Cir.

2003).    Unlike Article 3 of the CAT, which Congress implemented by

passing the Foreign Affairs Reform and Restructuring Act of 1998,

see   

,   Article   15   does   not   have

implementing legislation. As a result, I would hold that Atuar may

not seek judicial enforcement of his CAT claim.




                                      23
DUNCAN, Circuit Judge, concurring:

     I   concur   in   Judge   Traxler’s   opinion   and   concur   in   the

judgment.




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