Ex-Bush official, now judge, OKs torture challenge

In this Feb. 14, 2002 file photo, Jay Bybee testifies before a congressional committee in Washington. Former Justice Department lawyers Jay Bybee and John Yoo showed "poor judgment" but did not commit professional misconduct when they authorized CIA interrogators to use waterboarding and other harsh tactics at the height of the U.S. war on terrorism, an internal review released Friday, Feb. 19, 2010 found. (AP Photo/Evan Vucci, File) less In this Feb. 14, 2002 file photo, Jay Bybee testifies before a congressional committee in Washington. Former Justice Department lawyers Jay Bybee and John Yoo showed "poor judgment" but did not commit ... more Photo: Evan Vucci, AP Photo: Evan Vucci, AP Image 1 of / 1 Caption Close Ex-Bush official, now judge, OKs torture challenge 1 / 1 Back to Gallery

A federal appeals court in San Francisco revived a challenge to extradition Thursday by a Mexican man who said the evidence against him was obtained by torture, in a ruling written by a judge best known for approving torture of suspected terrorists during the George W. Bush administration.

Evidence produced by torture is inadmissible in legal proceedings, even in the streamlined hearings held to determine whether to extradite someone to a foreign country to face criminal charges, the U.S. Court of Appeals in San Francisco said in a 9-2 ruling. The court told a federal magistrate in Los Angeles to reconsider the case of Jose Luis Muñoz Santos and decide whether his allegations of torture are credible and, if so, whether any other evidence supports his deportation to Mexico.

“A coerced statement is not competent evidence,” Judge Jay Bybee said in the majority opinion, which reversed rulings by a federal judge and a three-judge appellate panel upholding Muñoz’s extradition.

Bybee, whom Bush named to the court in 2003, was the Justice Department official who approved an August 2002 memo concluding that waterboarding was not torture and that the president had the constitutional power to authorize torture during wartime.

The author of the memo, Justice Department attorney John Yoo, is now a UC Berkeley law professor. Bush’s Justice Department later repudiated the memo, and President Obama expressly barred waterboarding and other torture methods after taking office in 2009.

Muñoz was living in Southern California when he was arrested in 2006 and held for extradition to Mexico, which accused him of ordering the ransom kidnapping of a woman and her two young daughters from their home in the state of Nayarit in August 2005. He was released on bail for several years but has been back in custody since June 2011.

Two alleged accomplices, one of them Muñoz’s partner in a clothing business, told Mexican judges that they were following Muñoz’s orders in seizing the victims. One of the girls died during the ordeal.

However, both men submitted statements several months later recanting their admissions and saying they had been coerced. They said their captors had beaten them and threatened to harm their families unless they signed statements that police handed them, and one man said he had a bag tied over his head and water poured into his nose and mouth, treatment similar to waterboarding.

When Muñoz challenged his extradition, however, a U.S. magistrate refused to consider the torture allegations. He cited court rulings that prohibited immigrants facing extradition from presenting evidence that contradicted the government’s factual assertions, because such disputes can be resolved only at a trial, in the foreign country, that tests the credibility of the competing claims.

Extradition proceedings, the courts have said, are less formal and test only whether the government has offered adequate evidence.

But the appeals court said Thursday that evidence of torture does not merely contradict the government’s account of a confession but potentially “obliterates” it as grounds for extradition. U.S. courts must review such claims and decide whether the proposed extradition is based on coerced confessions, Bybee said.

In dissent, Judge Consuelo Callahan said the ruling would convert an extradition proceeding into a “mini-trial” and give U.S. courts powers that the law reserves to immigration officials and foreign governments. She was joined by Judge Sandra Ikuta.

If the court had ruled the other way, said Muñoz’s lawyer, Deputy Federal Public Defender Matthew Larsen, “it would have tacitly encouraged other countries to keep on torturing and keep on seeking extradition.”

The U.S. attorney’s office in Los Angeles declined to comment.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko