An assurance is a promise, given government to government, about how one person will be treated. It is usually short. It typically states that the named individual will not be subjected to torture, and it sometimes adds undertakings about where he will be held, whether he may be visited, and by whom. It is given in a diplomatic note or an exchange of letters rather than in a treaty, and it is not, in the ordinary case, published.
Where an assurance is used
Three situations account for nearly all of them.
Extradition. A foreign state asks the United States to surrender a person to stand trial. The person answers that he will be tortured if surrendered. The State Department seeks an assurance from the requesting state and, if it credits the assurance, the Secretary of State signs the surrender warrant.
Transfer from military or intelligence custody. A person held by the United States abroad is to be handed to the authorities of the country where he is held, or to a third state. The transfer is arranged with an assurance about his treatment afterward.
Immigration removal. This is the setting that matters most for the Coalition’s work. A person has already been found by an immigration judge to face a probability of torture, and has been granted protection for that reason. An assurance is then obtained from the very country the finding was about, and it is used to end the protection and permit the removal.
The structure of the problem
Read in sequence, the immigration case has a shape that is worth stating plainly, because it explains why the practice is contested rather than routine.
First, a tribunal makes a finding of fact: this person, if returned to this country, is more likely than not to be tortured. That finding is made on evidence, after a hearing, with the burden on the person to prove it. It is not lightly reached.
Second, the executive obtains a statement from the government that would do the torturing, to the effect that it will not. The statement is not evidence in the ordinary sense. It is not tested by cross-examination, it is not corroborated, and its author has an interest in the outcome.
Third, the executive weighs the statement against the finding and, if it credits the statement, the protection ends. Under the regulations, the decision that the assurance is sufficiently reliable is made by the Attorney General in consultation with the Secretary of State, and once it is made, the person’s claim for protection is not considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.
The result is that a finding made after a hearing is displaced by a statement made without one. Whether the person may be heard on the reliability of that statement is the question the Third Circuit answered in 2008, and the answer it gave is set out in the section on what the courts have held.
What an assurance does not do
An assurance does not change the facts in the receiving country. It does not create a right that the person can enforce anywhere: he is not a party to it, and a promise between two governments about a third person is not ordinarily a contract that the third person can sue on. It does not, by itself, provide for monitoring, and where monitoring is promised, the promise runs to the sending state rather than to the person. And it does not address what happens if it is broken. There is no established remedy in the sending state for a person who has already been removed, and the practical difficulty of proving a breach from inside a prison in the receiving country is obvious.
None of that settles whether assurances are ever appropriate. Serious people argue that they are, on the ground that the alternatives are worse. That argument, and the answer to it, are set out in the section on what is disputed.