AL NOURI v. RUBIO (2026)

OPINION

Ali Yousif Ahmed Al-Nouri appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Al-Nouri seeks habeas relief from an order certifying his extradition to the Republic of Iraq to be tried on two counts of premeditated murder. 1 Al-Nouri argues that such relief is warranted because the charges are not supported by probable cause or, in the alternative, because they are non-extraditable political offenses under the Extradition Treaty between the United States and Iraq (the Treaty). 2 He also argues that the inadequacy of the Iraqi judicial system and the deplorable humanitarian conditions in that country warrant the denial of extradition. Finally, he argues that Iraq intends to investigate and prosecute him for charges beyond those identified in the extradition request, in violation of the Treaty. Because competent evidence supports the extradition court's finding of probable cause, Al-Nouri has not met his burden to establish that the political offense exception applies, and his other claims are foreclosed by precedent, we affirm the district court's denial of habeas relief.

I.

A.

Al-Nouri is a naturalized United States citizen who was born in Iraq and fled to Syria before coming to the United States in 2009. The Iraqi government alleges that Al-Nouri was an emir, or a local leader, of a group of international terrorists known as Al-Qaeda in Iraq, or AQI, operating in Fallujah, Iraq. 3 Iraq further alleges that Al-Nouri and other members of AQI planned and executed the murders of two Iraqi police officers, First Lieutenant Issam Ahmed Hussein and Officer Khalid Ibrahim Mohammad. Those police officers were murdered in Fallujah, Iraq on June 1, 2006, and October 3, 2006, respectively.

On May 12, 2019, based on the killings of Lieutenant Hussein and Officer Mohammad, an Iraqi court—the Al-Karkh Investigative Court, which specializes in terrorism cases—issued a warrant for Al-Nouri's arrest on two counts of premediated murder in violation of Article 406(1)(A) of the Iraqi Penal Code No. 111 of 1969, as amended. On October 17, 2019, Iraq submitted a formal request through diplomatic channels for Al-Nouri's extradition from the United States to face charges for “carrying out (acts of killing with an armed terrorist group).” This request was supported by documents from the investigative court asserting that Al-Nouri was a leader of AQI, which it described as a terrorist group “working on disturbing the security and stability” of Iraq. These investigative documents included statements from a cooperating witness and three eyewitnesses to the murders, victim information and death certificates, identifying information about Al-Nouri, the arrest warrant, and summary reports.

1.

The cooperating witness provided several statements describing Al-Nouri's participation in the planning and execution of both murders. In these statements, the cooperating witness explained that he joined a group “working on killing police members,” and he identified Al-Nouri as the group's leader, or emir. The cooperating witness also described this group as “an armed militant group of Al-Qaeda,” a “terrorist organization,” and a “terrorist group.” The cooperating witness stated that Al-Nouri “killed the police officer Khalid Ibrahim [Mohammad],” and that Al-Nouri and others in the group “killed 1st Lieutenant Issam [Ahmed Hussein].” The cooperating witness admitted that he was present for the murder of Officer Mohammad and when the group agreed to kill Lieutenant Hussein, but he denied “participat[ing]” in Lieutenant Hussein's murder. The cooperating witness stated that Al-Nouri “was the one who told me that he executed the operation [to kill Hussein] using a 9mm hand[ ]gun that he was carrying.” The cooperating witness also stated that he or the group received payment (50,000 Iraqi Dinars) for the murders.

2.

An eyewitness (whom the parties refer to as Eyewitness 1) stated that he was sitting with Lieutenant Hussein on June 1, 2006, near a store in Fallujah when two cars approached them and masked, armed men got out of the cars. One of the men held a gun to Eyewitness 1's head and told him not to move. Another man cornered Lieutenant Hussein in the store and attempted to shoot him with a handgun, but the gun malfunctioned. Another man shot Lieutenant Hussein with an AK-47, killing him. Then Al-Nouri entered the store with a handgun and said “leave Issam [Hussein], he is an officer with the Fallujah police,” and the men replied, “step back and don't interfere with this matter.”  4 Al-Nouri and the other men fled from the scene, but Eyewitness 1 identified Al-Nouri as the emir of the group of masked, armed men who had shot Lieutenant Hussein.

3.

Two eyewitnesses (whom the parties refer to as Eyewitnesses 2 and 3) provided statements about the October 3, 2006, murder of Officer Mohammad. Eyewitness 2 was standing near the location where the shooting took place and witnessed the murder. Eyewitness 2 stated that he recognized Al-Nouri as “[a]mong those who fired shots and killed [Mohammad]” when Al-Nouri's mask fell off. Eyewitness 3 was sitting across the street from Officer Mohammad when a group of armed men pulled up in a car. Eyewitness 3 stated that he saw Al-Nouri get out of the car and shoot Officer Mohammad. Eyewitness 3 recognized Al-Nouri when Al-Nouri's mask fell off, and Eyewitness 3 identified Al-Nouri as a carpenter in Fallujah and as someone who assassinated police officers. Eyewitness 3 also identified Al-Nouri from a group of photographs as the shooter.

B.

In the proceedings before the extradition court, both the government and Al-Nouri relied on expert reports and testimony to explain the circumstances in Iraq around the time of the murders. The government submitted the report of Craig Whiteside, Ph.D., a Professor of National Security Affairs with the U.S. Naval War College at the U.S. Naval Postgraduate School, and Al-Nouri submitted the report of Haider Ala Hamoudi, J.D., J.S.D., a Professor of Law at the University of Pittsburgh.  5 The parties' experts offered conflicting opinions on several issues and reached differing conclusions about the political situation in Iraq at the time of the murders.

Al-Nouri's expert, Professor Hamoudi, opined that the murders of the police officers, Hussein and Mohammad, “were acts of a popular domestic insurgency” and thus were “crimes of a political character” and excluded from extradition under Article III of the Treaty. The government's expert, Professor Whiteside, opined that AQI “was a transnational terrorist group which operated and conducted terror attacks around the region and beyond in pursuit of its global agenda.” According to Professor Whiteside, “AQI was led by non-Iraqis whose objectives were global, [who] were responsive to higher-level leaders in Pakistan[, and who] were not focused on overthrowing the government in any one country.” Thus, he concluded that AQI “cannot in any level of accuracy be described as an ‘indigenous group.’ ”

1.

Professor Hamoudi explained that, after the United States and coalition forces invaded Iraq in 2003, and the resulting removal from power of Saddam Hussein and the Sunni dominated Ba'ath regime, the “majority Shi'a population” worked with the United States to form a transition government in Iraq. But the ousted Ba'ath regime resented that a foreign government had caused the loss of their jobs and their privileged positions. As the United States' presence continued, tensions in Iraq increased and a Sunni resistance movement developed and violently challenged the American Coalition forces and the Shi'a dominated Iraqi government that was in place. The insurgency continued during and beyond the time of the murders in 2006.

At the same time as the Sunni insurgency, international terrorist organizations were also present and active in Iraq. Professor Hamoudi described AQI as part of the domestic insurgency, though he acknowledged that the organization “also extended beyond the limited confines of the insurgency.” In his view, however, AQI “was only nominally connected to the broader Al-Qaeda organization.” AQI's leader Abu Mus'ab al-Zarqawi, a Jordanian jihadist, “paid no attention at all to the directions he received from Al Qaeda,” his role was “highly exaggerated,” and Zarqawi and “an extremely small and insignificant band of supporting foreign fighters, were used as bogeymen to delegitimize what was a broader [Sunni] uprising.”

Professor Hamoudi further explained that, “like the entire insurgency,” AQI was informally structured and lacked a rigid hierarchy. His report states that “Zarqawi planned operations that extended beyond the confines of the Iraqi insurgency, while others within AQI coordinated with the other insurgent groups in order to plan operations more closely tied to the aims of the insurgency.” Moreover, as AQI gained power, insurgents would describe themselves as part of Al-Qaeda rather than other groups. Therefore, Professor Hamoudi cautioned that violent acts should not be characterized as either “terrorist” or “political resistance [as part of a] domestic insurgency” based on the group committing the violence. Instead, that determination should be based on the nature of the act, which in this case was “the targeted assassination of police officers.”

He opined that, while “there was international terrorism in Iraq at the time of the insurgency, and Zarqawi was leading much of it,” neither Zarqawi nor other international terrorists meticulously targeted or killed “police officers in the new Iraqi state” because they lacked the skill, experience, and operational capacity to do so. Instead, “the careful, meticulous assassination of a ranking police officer was entirely characteristic of the insurgency and indeed perhaps the hallmark activity on which the insurgency was focused.” He further described the attacks on police officers as a “classic feature[ ] of the Sunni insurgency” that was “designed to achieve a real political end—the destruction of a new political order that Sunni Arabs detested.” Professor Hamoudi also speculated that it was possible that the killings were misattributed to AQI.

2.

The government's expert, Professor Whiteside, also acknowledged the Sunni insurgency in Iraq. According to Professor Whiteside, AQI was not “just another Iraqi resistance group during” 2006. He explained that AQI arose out of the Islamic State movement, which began as a small group under the leadership of Zarqawi in Afghanistan in the late 1990s.  6 In 2002, after American forces ejected the group from Afghanistan, Zarqawi led them into northern Iraq. Zarqawi's small group—called Tawhid wal-Jihad (Monotheism and Struggle)—engaged in a military campaign of attacks on high-visibility government and international targets, including beheading Western captives. In 2003, the group sought to join Al-Qaeda, and after nearly a year of negotiations, Zarqawi pledged allegiance to Osama Bin Laden in October 2004 and changed the name of the group to Al-Qaeda's Base of Jihad in the Land of Two Rivers.

Professor Whiteside further explained that AQI had a global agenda aimed at taking over Iraqi lands to establish a caliphate that would span Iraq and territories belonging to “Iraq's neighboring ‘apostate’ governments.” From October 2004 to October 2006, AQI “operat[ed] in the region as an official Al-Qaeda franchise,” laying the groundwork for establishing a caliphate in “lands liberated from both U.S. and allied forces” in Iraq and Kuwait, Syria, and Turkey. Rather than focusing on overthrowing the government in one country, AQI sought to redefine international borders and create a “pan-Islamic state that transcended current borders and aligned with the borders of the Islamic Empire at its greatest extent.” Indeed, as Professor Whiteside explains, the Arabic name for AQI, “al-Qaeda's Base of Jihad in the Land of Two Rivers,” refers to the Tigris and the Euphrates Rivers and does not mention Iraq. To advance its global agenda, AQI conducted violent acts in Iraq and the surrounding region and exploited the insurgency in Iraq.

At the time of the murders in 2006, AQI's leader in the Anbar province, where Fallujah is located, was a native Syrian, Jarrah Al-Shami.  7 According to Professor Whiteside, the AQI emirs in Fallujah followed Al-Shami's instructions including his “directives to kill Iraqi policemen” and others who “joined, collaborated, or negotiated with the government.” AQI's purpose was not concerned with “impacting the insurgency” but was focused on inspiring “fear and terror” and “dissuad[ing] locals from joining the government.” AQI's largely foreign-born leadership, which was divorced from local ties and sympathies, selected and prioritized these motivations.

But these killings were unpopular with local insurgents. Because some locals joined the police forces, “AQI's targeting of police forces” frequently brought it into conflict with other groups. Professor Whiteside explained that “AQI was criticized for its foreign leadership, brutality to local Iraqis, and allegiance to a foreign network by all of its major local insurgent rivals who were more interested in Iraqi political issues.” The differences in methods and goals between AQI and the local insurgents led to an armed backlash against AQI in 2006 and 2007. Thus, Professor Whiteside concluded, “[i]t is a categorical error to paint AQI as just another Iraqi resistance group during this time period.”

C.

On Iraq's behalf, on January 29, 2020, the United States filed a complaint in the United States District Court for the District of Arizona seeking a warrant for Al-Nouri's arrest. Al-Nouri was arrested in Arizona on January 30, 2020. After an extradition hearing, a magistrate judge (the extradition court) concluded that Al-Nouri was extraditable under 18 U.S.C. § 3184 for the offenses described in the complaint and certified Al-Nouri's extradition on April 1, 2022.

Al-Nouri challenged that certification by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241. After the petition was fully briefed, Al-Nouri moved for the district court (the reviewing court) to consider four declarations, dated October 2022 and filed under seal, that he had obtained from the investigative group One World Research (the OWR declarations). Three of these declarations were from people who stated that they witnessed the murder of Lieutenant Hussein and that Al-Nouri was nearby in his shop when the killing occurred, but he was not involved in the shooting. The fourth declaration was from a person who stated that he interviewed Eyewitness 2 over the phone about the murder of Officer Mohammad, and Eyewitness 2 recanted his prior statement and said that he was not at the scene and did not see anything.

In a report and recommendation (R&R), a different magistrate judge recommended denying the habeas petition. After considering Al-Nouri's objections, the district court adopted the R&R and denied the petition. The district court determined that the OWR declarations were inadmissible contradictory evidence and therefore did not consider them. The district court rejected Al-Nouri's challenges to the probable cause determination. The district court also rejected Al-Nouri's argument that the charged offenses were non-extraditable political offenses under Article III of the Treaty. The district court, applying de novo review, affirmed the extradition court's legal conclusion that the political offense doctrine does not apply to acts of international terrorism. See Quinn v. Robinson, 783 F.2d 776, 806 (9th Cir. 1986). The district court then concluded that the extradition court did not clearly err in its factual findings that “(1) any alleged action [Al-Nouri] took related to the murders was on behalf of AQI,” and (2) “even though there were domestic insurgencies in Iraq at the time, AQI was not one of them but was rather an internationalist terrorist group dedicated to ‘destroying the Iraqi government from without as opposed to supporting a domestic political struggle from within.’ ” See id. at 791.

The district court also determined that the rule of non-inquiry barred judicial review of Al-Nouri's arguments that his extradition should not be certified because he could face abusive and arbitrary procedures in the Iraqi criminal justice system. See Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005). Finally, the district court also rejected as speculative Al-Nouri's argument that Iraq intended to violate the Treaty by bringing additional charges against him after his extradition. The district court denied the habeas petition, and Al-Nouri timely appealed. See Fed. R. App. P. 4(a). The district court stayed Al-Nouri's extradition pending this appeal.

II.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. “We review de novo the district court's denial of a habeas petition in extradition proceedings.” Rana v. Jenkins, 113 F.4th 1058, 1063 (9th Cir. 2024), cert. denied, ––– U.S. ––––, 145 S. Ct. 1128, 220 L.Ed.2d 423 (2025) (quoting United States v. Knotek, 925 F.3d 1118, 1124 (9th Cir. 2019)). But the scope of our review is “severely limited.” Artukovic v. Rison, 784 F.2d 1354, 1355–56 (9th Cir. 1986). “We can review only ‘whether: (1) the extradition magistrate judge had jurisdiction over the individual sought, (2) the treaty was in force and the accused's alleged offense fell within the treaty's terms, and (3) there is any competent evidence supporting the probable cause determination of the magistrate judge.’ ” Rana, 113 F.4th at 1063 (quoting Knotek, 925 F.3d at 1124).

Al-Nouri does not challenge the extradition court's jurisdiction but instead argues that the alleged offenses are not supported by probable cause and do not fall within the Treaty's terms. We first consider the extradition court's probable cause determination and then address whether Al-Nouri's alleged offenses are within the terms of the Treaty. Finally, we consider Al-Nouri's arguments challenging the adequacy of the Iraqi criminal justice system and his claim that Iraq intends to violate the Treaty by bringing additional charges against him.

III.

Our review of Al-Nouri's challenge to the evidence supporting the extradition request is guided by federal law and the terms of the Treaty. See 18 U.S.C. § 3184 (providing that the court shall certify extradition when the court “deems the evidence sufficient to sustain the charge under the provisions of the proper treaty”). Here, Article I of the Treaty provides that a request for extradition must be supported by “sufficient evidence, according to the laws of the country where that person is found, to justify his apprehension and commitment for trial if the crime had been there committed.” Thus, the Treaty requires Iraq to provide information “that would be sufficient to establish probable cause” that Al-Nouri committed the alleged crimes. See Emami v. U.S. Dist. Ct. for N. Dist. of Cal., 834 F.2d 1444, 1447 (9th Cir. 1987) (considering similar treaty language).

“We must affirm the [extradition court's] probable cause finding so long as ‘there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.’ ”  8 Rana, 113 F.4th at 1070 (quoting Manrique v. Kolc, 65 F.4th 1037, 1044 (9th Cir. 2023)); see also Quinn, 783 F.2d at 791 (explaining that, because the probable cause finding is not a factual finding, “it must be upheld if there is any competent evidence in the record to support it”).

Al-Nouri is accused of violating Article 406(1)(A) of the Iraqi Penal Code No. 111 of 1969, as amended. This provision criminalizes premeditated murder when a defendant participates as a principal or accessory, including when a defendant “conspires with others to commit an offense” and the offense “is committed on the basis of such conspiracy.” We conclude that competent evidence supports the charges that Al-Nouri violated the relevant provision of the Iraqi Penal Code.

A.

We first consider whether competent evidence supports the extradition court's probable cause finding for the charge that Al-Nouri participated in the murder of Lieutenant Hussein, and we conclude that it does. Iraq provided sworn statements from a cooperating witness describing Lieutenant Hussein's murder to the investigative court and counterterrorism officers in Iraq. In one statement, the cooperating witness stated that he worked with Al-Nouri in an “Al-Qaeda organization,” and in 2006, he met with Al-Nouri and others at Al-Nouri's carpentry shop in Fallujah and agreed to kill Lieutenant Hussein. The cooperating witness acknowledged that he was present for the murder and described Al-Nouri stepping out of a “white Prince” car and shooting Lieutenant Hussein with a 9mm handgun. In another statement, the cooperating witness again recounted being with Al-Nouri and other individuals when they agreed on “how to kill” Lieutenant Hussein but denied that he was at the murder scene. The cooperating witness said that Al-Nouri, the emir of the group, told the cooperating witness that “he executed the operation using a 9mm hand[ ]gun that he was carrying.” In another statement, made during a walk-through of the location of the murder, the cooperating witness again said that he was present at Al-Nouri's shop when the group planned to kill Lieutenant Hussein, that he later learned that Al-Nouri killed Lieutenant Hussein, and that the assailants used a “white Daewoo Prince” and automatic weapons and pistols.

As Al-Nouri argues, there are discrepancies in the cooperating witness's accounts. He describes some details differently, including the model of a car involved, where Lieutenant Hussein was standing, and whether the cooperating witness was present when Lieutenant Hussein was killed. But the cooperating witness consistently stated that he was present when Al-Nouri and others agreed to kill Lieutenant Hussein, and these statements are sufficient to support the probable cause determination for accomplice or co-conspirator liability. See Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005) (en banc) (per curiam) (concluding that evidence in an extradition proceeding that the petitioner was at the house but not in the room where the victim was murdered was nonetheless sufficient to support probable cause for accomplice or co-conspirator liability, even if it was not sufficient to prove guilt beyond a reasonable doubt); Zanazanian v. United States, 729 F.2d 624, 627 (9th Cir. 1984) (stating that “self-incriminating statements of accomplices are sufficient to establish probable cause in an extradition hearing”).

Iraq also submitted two statements from Eyewitness 1 describing Lieutenant Hussein's murder. In both statements, Eyewitness 1 was reportedly sitting with Lieutenant Hussein at a shop when armed, masked men arrived in two cars. In both statements, Eyewitness 1 said one of the men put a gun to his head. Then another man tried to shoot Lieutenant Hussein, but the gun malfunctioned, and another man shot Lieutenant Hussein with an AK-47. But there are also discrepancies in Eyewitness 1's statements. Eyewitness 1 said that Al-Nouri, who was holding a handgun, told the others to “leave” the victim. The first statement says Al-Nouri told the others to leave after Lieutenant Hussein had been shot. The second statement recounts that Al-Nouri told the others to leave before the shooting.

Al-Nouri argues that Eyewitness 1's statements “exonerate[ ]” him because they show that Al-Nouri did not try kill Lieutenant Hussein but tried to save him. But because other competent evidence supports the probable cause determination, the discrepancies in these two statements describing Al-Nouri's role in the murder, even if construed to provide an innocent explanation of his actions, do not defeat that determination. See Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922) (“The function of the [court charged with assessing whether probable cause exists] is to determine whether there is competent evidence ․ not to determine whether the evidence is sufficient to justify a conviction.”); Santos, 830 F.3d at 991 (“An extradition hearing [like a preliminary hearing] involves a preliminary examination of the evidence and is not a trial.” (citation omitted)).

Al-Nouri also points out that there are inconsistencies between the statements of the cooperating witness and Eyewitness 1, including the color of the car used during the murder and the number of assailants. He argues that we should not credit these statements because they are conflicting, speculative, and lack sufficient detail. He also argues that the cooperating witness “is by definition a witness with baggage,” and the other witnesses are either similarly biased or their testimony is incredible. But we “may not consider credibility attacks on habeas review, even if an extradition magistrate judge may consider them.” Rana, 113 F.4th at 1071 (citing Quinn, 783 F.2d at 815). And even if we were weighing credibility, these statements identify Al-Nouri as a conspirator and place him at the murder scene and therefore provide competent evidence to support the probable cause finding. Thus, the discrepancies in the witnesses' statements do not undermine the probable cause determination. See United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 728 (9th Cir. 1975) (affirming the denial of a habeas petition and holding that any inconsistencies or discrepancies in extradition documents were “of no consequence if there exist[ed] in those documents ‘any’ other sufficient competent evidence”).

B.

We next consider whether competent evidence supports the extradition court's finding of probable cause for the charge that Al-Nouri participated in Officer Mohammad's murder, and we conclude that it does. Eyewitness 2 and Eyewitness 3 provided sworn statements about Officer Mohammad's murder. Eyewitness 2 told the investigative court that he was “standing near the location” where Officer Mohammad was killed, and he recognized Al-Nouri as one of the individuals who “fired shots and killed” the victim. Eyewitness 3 told investigators that, during the month of Ramadan in 2006, he was on the street when a “red Opel Omega” approached with “four people inside” who started shooting at Officer Mohammad. He then saw armed men exit the car and one man continue to shoot at Officer Mohammad until the men left the area. Eyewitness 3 “recognized the person who got out of the car and fired on the victim” as Al-Nouri, who worked at a carpentry store on the street where the shooting occurred. Eyewitness 3 also identified Al-Nouri from a group of photographs shown to him at an identification hearing. Eyewitness 3 said Al-Nouri was “well known in the area for conducting assassination operations on most members of the Police force.”

The cooperating witness also provided two statements about Officer Mohammad's murder. The cooperating witness stated that he joined “an armed militant group of [the] Al-Qaeda terrorist organization” that was led by Al-Nouri and was “working on killing police members,” and agreed to kill Officer Mohammad. The cooperating witness stated that, “in the month of Ramadan,” the group located Officer Mohammad, who was sitting with two people near some stores. He stated that he and other members of the group went to that area and killed Mohammad and two other people. He said Al-Nouri used or carried a 9mm pistol. The cooperating witness also said they were paid 50,000 Iraqi Dinars after the killing.

The statements of Eyewitness 2, Eyewitness 3, and the cooperating witness support the extradition court's determination that probable cause exists for the charge against Al-Nouri for Officer Mohammad's murder. Al-Nouri argues the witnesses' statements do not support probable cause because they contain several inconsistencies in their descriptions of the murder, including whether Officer Mohammad was on his way to work or to buy food, and whether he was murdered when he was near a water tank, his house, or in front of some stores. But because the witnesses' statements include competent evidence to support the extradition court's probable cause finding, including consistently stating the street where the murder occurred, that Al-Nouri was present, and that he carried a gun and fired at Officer Mohammad, the discrepancies that Al-Nouri identifies do not undermine the probable cause determination. See Quinn, 783 F.2d at 815 (rejecting argument that because of procedural irregularities, lengthy delays in identifying the petitioner as the assailant, and contradictions between a witness's description of the assailant and the petitioner's actual physical characteristics, the evidence was not competent and could not support the extradition court's probable cause finding).

C.

Finally, we reject Al-Nouri's argument that the district court should have considered the OWR declarations that he submitted to support his habeas petition because, if considered, these declarations would have defeated the extradition court's probable cause finding. He argues that the OWR declarations were admissible because they “directly, unequivocally contradicted Iraq's evidence” about the murders of Lieutenant Hussein and Officer Mohammad.

But in the extradition context, an accused may present only evidence that “explains away or completely obliterates probable cause.” Santos, 830 F.3d at 992 (quoting Mainero v. Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999), superseded by statute on other grounds as recognized in Manrique, 65 F.4th at 1044). Evidence that is only contradictory is inadmissible. Id. at 992–93. The district court declined to consider the OWR declarations, which it deemed contradictory evidence.

Al-Nouri argues that the OWR declarations “cannot be dismissed as merely contradictory” because they “go[ ] to the heart of probable cause.” He asserts that the eyewitness statements in the OWR declarations are “diametrically opposed to what others, who are not independent observers, have to say.” Thus, Al-Nouri argues we should weigh the evidence “in a case as conflicting as this one.” Al-Nouri's argument demonstrates that he offers the OWR declarations to contradict Iraq's evidence. Such contradictory evidence is inadmissible. Id.

Al-Nouri's argument also fails because the OWR declarations do not “completely obliterate[ ]” Iraq's evidence demonstrating probable cause. See id. at 992 (citation omitted). Instead, three of the OWR declarations are from eyewitnesses to Lieutenant Hussein's murder who confirm that Al-Nouri was at the scene of the murder, even while contradicting his participation. These declarations also fail to address, let alone obliterate, the cooperating witness's statements about Al-Nouri's role in planning the murders. Thus, we conclude that the district court properly determined that these three OWR declarations were inadmissible contradictory evidence. See id. at 992–93.

The fourth OWR declaration similarly contains only inadmissible contradictory evidence about Officer Mohammad's murder. The declarant states that, during a phone conversation, Eyewitness 2 recanted his statement implicating Al-Nouri and instead claimed that he was not present and therefore did not witness Officer Mohammad's murder. But evidence that a witness has recanted a prior statement does not “obliterate” probable cause because it is merely “conflicting evidence, the credibility of which c[an] not be assessed without a trial.” Barapind, 400 F.3d at 749–50. Therefore, the district court properly concluded that the OWR declarations should not be considered as part of the probable cause determination. See id. at 750 (concluding that because extradition courts do not weigh conflicting evidence when making a probable cause determination, there was no basis for overturning the extradition court's probable cause determination).

IV.

Al-Nouri also argues that, even if supported by probable cause, the murder charges cannot provide a basis for extradition because the alleged offenses were committed in furtherance of a domestic insurgency and therefore fall within the political offense exception in Article III of the Treaty. 9 The government argues that the political offense exception does not apply because Al-Nouri planned and executed the murders in his role as a local leader of an international terrorist organization and in furtherance of its goals, and not as part of a domestic insurgency.

The political offense exception is “an affirmative defense to extradition,” and the party presenting the defense bears the burden of proof. Vo v. Benov, 447 F.3d 1235, 1242 (9th Cir. 2006). Whether an offense qualifies for the political offense exception to extradition “is reviewable on habeas corpus as part of the question of whether the offense charged is within the [extradition] treaty.” Quinn, 783 F.2d at 791. This is “a mixed question of law and fact.” Id. We review an extradition court's factual findings underlying application of the exception for clear error, but “the mixed determinations at issue—such as the question whether the crime was incidental to a political uprising—must be reviewed de novo.” Id.

A.

There are “two distinct categories of political offenses: ‘pure political offenses’ and ‘relative political offenses.’ ” Id. at 793 (citation omitted). Pure political offenses, such as treason, sedition, and espionage, are “acts aimed directly at the government.” Id. Relative political offenses are “otherwise common crimes committed in connection with a political act” or “common crimes” that are “committed for political motives or in a political context.” Id. at 794 (citations omitted). The parties agree that the murders at issue here are not pure political offenses; instead, they dispute whether the murders are relative political offenses.

We apply the “incidence test” to determine whether a charged crime is a relative political offense. Vo, 447 F.3d at 1241. The party asserting the political offense exception must establish that (1) there was an “uprising or other violent political disturbance at the time of the charged offense,” and (2) that “[the] charged offense [was] ‘incidental to[,]’ ‘in the course of,’ or ‘in furtherance of’ the uprising.” Quinn, 783 F.2d at 797 (internal citations and footnote omitted); Barapind, 400 F.3d at 750.

The first prong of the incidence test—that there was an “uprising” at the time of the charged offenses—“plays the key role in ensuring that the incidence test protects only those activities that the political offense doctrine was designed to protect.” Quinn, 783 F.2d at 806; Vo, 447 F.3d at 1241. It has three requirements. First, an uprising requires a “certain level of violence.” Id. (quoting Quinn, 783 F.2d at 807). Second, the violence must “ ‘occur only within the country or territory in which those rising up reside,’ and the charged offense must take place in that geographic area.” Id. (quoting Quinn, 783 F.2d at 807). Third, “the individual charged with the offense must be ‘seeking to change the form of the government under which [he] live[s].’ ” Id. (quoting Quinn, 783 F.2d at 818).

To establish the second prong of the incidence test, that an offense was “incidental to” an uprising, the party invoking the political offense exception must prove a nexus between the charged offense and the uprising. 10 Quinn, 783 F.2d at 809. The “ ‘incidental to’ prong[ ] ․ asks whether [the] crimes were ‘causally or ideologically related’ to the political uprising.” Barapind, 400 F.3d at 750 (quoting Quinn, 783 F.2d at 809). To answer this question, we “focus not on the types of acts alleged, but rather on the motivation for those acts.” 11 Id. (citing Quinn, 783 F.2d at 809–10). “It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal.” Quinn, 783 F.2d at 804–05.

In sum, the incidence test “protects acts of domestic violence in connection with a struggle for political self-determination.” Id. at 806. But it “was not intended to and does not protect acts of international terrorism.” Id.

B.

Al-Nouri argues that the extradition court erred in its analysis because it is undisputed that there was a violent Sunni insurgency in Iraq in 2006, and thus he has satisfied the uprising prong of the incidence test. The extradition court acknowledged the parties' agreement that there was a violent Sunni insurgency in Iraq in 2006 and that the insurgency opposed the Iraqi government and the United States.

Even assuming this insurgency satisfies the uprising prong of the incidence test, Al-Nouri fails to carry his burden to demonstrate that the political offense exception to extradition applies because, as the extradition court properly found, Al-Nouri failed to satisfy the second prong of the incidence test: that the offenses were “incidental to” the uprising. Quinn, 783 F.2d at 809. The extradition court's factual findings, which are not clearly erroneous, support the conclusion that Al-Nouri failed to demonstrate that the murders of Lieutenant Hussein and Officer Mohammad were in furtherance of, or incidental to, any domestic uprising. See id.; Barapind, 400 F.3d at 750. We discuss these findings in detail below.

1.

First, the extradition court determined “that the murders were committed by individuals acting on behalf of AQI” because there was “no competent evidence” that any other group committed the murders or that the murders were misattributed to AQI. The record supports this conclusion. The cooperating witness stated that he joined a group that was “working on killing police members,” identified Al-Nouri as the group's leader, or emir, and described this group as “an armed militant group of Al-Qaeda.” Professor Whiteside opined that AQI emirs in Fallujah followed the instructions of Al-Shami, AQI's leader in the Anbar province which includes Fallujah, including his “directives to kill Iraqi policemen” and others who “joined, collaborated, or negotiated with the government.”

Although he had the burden of establishing that the political offense exception applied to bar his extradition, Al-Nouri did not present evidence to the extradition court to dispute his involvement or role in AQI. Instead, he argued that even if AQI was involved in the murders and he was involved in AQI, the murders fit the profile of acts of an indigenous conspiracy and therefore the political offense exception applied to bar extradition. Al-Nouri further argued that even if he followed orders from AQI to kill police officers in Fallujah, the political offense exception would still apply because insurgencies are not “hermetically sealed off from the rest of the world.”

In this appeal, Al-Nouri makes similar arguments and again does not dispute either his role in AQI or that AQI was involved in the murders. Instead, in his opening brief, Al-Nouri refers to AQI as “the outfit linked to the murders in this case.” We therefore conclude that the extradition court's determination that the murders were committed by individuals acting on behalf of AQI is not clearly erroneous. 12 See Quinn, 783 F.2d at 791 (“Purely factual questions in extradition cases are reviewed under the clearly erroneous standard.”).

2.

Second, the extradition court determined that AQI was not part of the Sunni Insurgency. The extradition court rejected Al-Nouri's argument that AQI's role in directing the murders, and the identity of the murderers, is irrelevant if the attacks “fit the profile of an act” of an indigenous uprising. It explained that “[u]nder Quinn, it matters who the insurgents were who carried out the murders” because while international terrorism is “categorically excluded” from protection under the political offense exception, not all politically motivated violence targeting civilians is international terrorism. Thus, as the extradition court concluded, “under Quinn the crucial question is not the nature of the act but whether the act was incidental to or in furtherance of an indigenous uprising.” See Quinn, 783 F.2d at 809 (“The act must be causally or ideologically related to the uprising.”).

The extradition court considered and summarized the competing opinions of the parties' experts, Professors Hamoudi and Whiteside, in finding that AQI was not part of the Sunni insurgency. The experts agreed that, at the same time as the Sunni insurgency, there was international terrorism in Iraq. The extradition court credited Professor Whiteside's opinion that “AQI was an international and transnational terrorist group committing violence in multiple nations besides Iraq, and that AQI often stood in violent opposition to other Sunni insurgent groups in Iraq.” It explained that “ample evidence” in Professor Whiteside's report supported that conclusion, including that “AQI's leadership was drawn heavily from non-Iraqis, who maintained continuous ties with external terror groups such as the main al-Qaeda group.” And “AQI's regional commanders in Iraq were not Iraqi natives.” Thus, the extradition court credited Professor Whiteside's opinion that “AQI was not an ‘indigenous group’ as it was ‘led by non-Iraqis whose objectives were global’ and [who] ‘were responsive to higher-level leaders in Pakistan.’ ”

The extradition court cited and credited Professor Whiteside's opinion that from October 2004 to October 2006 AQI operated “in the region as an official al-Qaeda franchise.” Professor Whiteside's report stated that AQI had a “global agenda” that included conducting terrorist attacks in Iraq and surrounding areas. And, around the time of murders in 2006, AQI committed violent acts in Iraq in furtherance of its objectives in Iraq and continued to conduct “transnational terrorist” activities in other countries including Jordan, Israel, and Turkey. According to Professor Whiteside, AQI was “not focused on overthrowing the government in any one country.” Rather, it sought to replace international borders and establish a “pan-Islamic state that transcended current borders and aligned with the borders of the Islamic Empire at its greatest extent.” AQI exploited uprisings, such as the one in Iraq, to advance its objective of “establish[ing] a caliphate in the Levant region, which includes parts of Iraq, Kuwait, Syria, and Turkey.”

The extradition court also cited Professor Whiteside's report that by 2006 there was a violent backlash by local groups against AQI as support for its conclusion that “AQI was in opposition to indigenous Sunni groups, and not part of a domestic insurgency.” The extradition court cited Professor Whiteside's description of the differences in tactics between AQI and the domestic insurgency groups, and his report that the domestic insurgency groups joined with the United States and the Iraqi government to fight against AQI, as further support for “the inapplicability of the political offense exception to acts committed on behalf of AQI, an international and transnational terrorist group.”

In contrast, Al-Nouri relies on Professor Hamoudi's report to argue that AQI was one of many groups opposed to the Iraqi government, that it was “part of the popular, domestic insurgency,” and that it coordinated with other insurgency groups. The extradition court considered Professor Hamoudi's report, and it acknowledged his opinion that, while there was a “formal affiliation” between AQI and Al-Qaeda, “this affiliation was in name only,” and the two groups “did not even share the same basic strategic or tactical goals.” The extradition court also noted that, while Professor Hamoudi acknowledged that “there was international terrorism in Iraq at the time of the insurgency, and Zarqawi [AQI's leader] was leading much of it,” Professor Hamoudi concluded that “neither Zarqawi nor international terrorists engaged in the meticulous targeting of ranked police officers in the new Iraqi state” because they lacked the “skill set, the experience [and] the capacity ․to carry out such operations.” Instead, Professor Hamoudi opined that the targeted attacks of ranked police officers “were classic features of the Sunni insurgency.”

The extradition court's comprehensive summary and analysis of the experts' opinions demonstrates that the court carefully weighed the evidence the parties presented. Indeed, Al-Nouri does not challenge the extradition court's summary of the experts' opinions or suggest that the court misunderstood the evidence. His assertion that the extradition court should have credited Professor Hamoudi's opinions over Professor Whiteside's opinions and reached different conclusions does not satisfy his burden to prove that the murders were “related to or connected with” the domestic insurgency. See Quinn, 783 F.2d at 809–10 (describing the “incidental to” component); see also Vo, 447 F.3d at 1242 & n.7 (stating that the party presenting the political offense exception, an affirmative defense to extradition, has the burden of establishing its elements). Thus, we conclude that the extradition court did not clearly err by crediting Professor Whiteside's opinion that AQI was not part of the local insurgency and by rejecting Professor Hamoudi's contradictory opinion.

3.

Third, the extradition court concluded that the murders were acts of international terrorism. And quoting Quinn, it concluded that “[a]cts of international terrorism do not meet the incidence test and are thus not covered by the political offense exception.” Quinn, 783 F.2d at 817.

Al-Nouri argues that these findings are erroneous because “[t]here is no evidence” that the local Iraqis who were affiliated with AQI intended to spread revolution across borders or that they sent cash, arms, or literature to other countries to foment insurrection. He also argues that nothing in the record proves that he and the other participants in the murders acted with the intent to further AQI's reach or to establish a caliphate, or that as an emir he “was carrying out Al-Qaeda's international goals” to establish a “caliphate across the middle east.”

These arguments, based on the absence of evidence, fail because they erroneously suggest that the government has the burden of proof. But it is well settled that the party asserting the defense has the burden of proving that it applies. See Vo, 447 F.3d at 1242 & n.7. And these absence-of-evidence arguments do not satisfy Al-Nouri's burden to prove that the political offense exception applies. See Barapind, 400 F.3d at 752 (concluding that because the petitioner “provided no evidence at all to explain the motive for [the] murder,” there was “no basis for finding that the murder was a political offense”).

Al-Nouri also argues that the murders were incidental to the Sunni insurgency because he was a native Iraqi, AQI included local Iraqis, the murders occurred in Iraq, and Al-Qaeda's actions outside of Iraq are irrelevant. He further argues that the presence of non-indigenous persons in leadership roles in AQI does not mean the murders were not incidental to the Sunni uprising. 13 But these arguments do not address the political goals of the murders and whether they were committed to inspire “fear and terror,” in furtherance of AQI's efforts to establish a caliphate spanning Iraq, Kuwait, Syria, and Turkey, as Professor Whiteside asserted, or whether they “were acts of a popular domestic insurgency,” as Professor Hamoudi asserted. Thus, Al-Nouri's arguments fail to establish a factual or causal nexus between the murders and the political goals of the Sunni uprising. See id. at 751 (explaining that the party asserting the political offense exception “has the burden of showing a factual nexus between the [charged offenses] and the political goal” of the uprising).

4.

Finally, the extradition court rejected Al-Nouri's argument that he could establish that the murders were “causally or ideologically related” to the Sunni insurgency based on the nature of the charged offenses—the targeted murder of police officers. See Quinn, 783 F.2d at 809. The parties' experts presented conflicting opinions on the significance of the nature of the charged offenses. Professor Hamoudi opined that the murder of police officers was “entirely characteristic of the insurgency” and “perhaps the hallmark activity on which the insurgency was focused.” Professor Whiteside, in contrast, opined that the campaign to assassinate police officers was “unpopular among Sunni militant groups,” it made AQI an “outlier” among those groups, and eventually resulted in backlash from Sunni insurgents. The extradition court did not err in crediting Professor Whiteside's opinion that, “in contrast to AQI, indigenous insurgents did not target police officers.” Al-Nouri has not shown that this finding was clearly erroneous, and we conclude that the extradition court did not clearly err by crediting Professor Whiteside's opinion that the assassination of police officers was not part of the domestic insurgency and by rejecting Professor Hamoudi's conflicting opinion.

C.

We conclude that the extradition court did not clearly err in its factual findings that AQI was not part of the Sunni domestic insurgency, that AQI directed the murders, and that the murders were acts of international terrorism constituting “foreign intervention in internal struggles for self-determination.” Based on these factual findings, we agree that the murders were not in furtherance of, or incidental to any domestic insurgency. And the extradition court's conclusion that “international terrorism is not protected by the political offense exception” is not legally erroneous. See Quinn, 783 F.2d at 805. Accordingly, Al-Nouri has failed to establish that the political offense exception applies as a defense to his extradition.

V.

Al-Nouri also argues that the inadequacy of the Iraqi judicial system and deplorable humanitarian conditions in that country warrant the denial of extradition. Among other issues, he complains that Iraqi courts suffer from perfunctory trials, poor recordkeeping, crowded dockets, lack of forensic evidence, and forced confessions.

But our role in extradition proceedings is constrained by the separation of powers among the branches of our government, and we have a very narrow role in extradition proceedings. See Knotek, 925 F.3d at 1132. By statute, “extradition is a matter of foreign policy entirely within the discretion of the executive branch, except to the extent that the [extradition] statute interposes a judicial function.” Vo, 447 F.3d at 1237 (citation and alteration omitted); see also 18 U.S.C. § 3184 (federal extradition statute). And, under the “rule of non-inquiry,” “it is the role of the Secretary of State, not the courts, to determine whether extradition should be denied on humanitarian grounds or on account of the treatment that the fugitive is likely to receive upon his return to the requesting state.” 14 Prasoprat, 421 F.3d at 1016; see 22 C.F.R. § 95.3(b) (stating that “the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions”). Accordingly, the extradition and reviewing courts properly declined to consider whether a humanitarian exception to extradition should apply in this case.

VI.

Finally, Al-Nouri argues that the district court erred by failing to consider whether Iraq intends to investigate and prosecute him on charges other than those identified in the extradition request in violation of Article IV of the Treaty. Article IV provides that “[n]o person surrendered shall be tried for any new crime other than that for which he was surrendered without the consent of the High Contracting Party.” But, as the district court correctly concluded, Al-Nouri's argument that Iraq may later violate the Treaty is speculative and thus outside the scope of habeas review. Martinez Santoyo v. Boyden, 130 F.4th 784, 787 (9th Cir. 2025), cert. denied, ––– U.S. ––––, 146 S. Ct. 149, 223 L.Ed.2d 40 (2025). To the extent that Al-Nouri seeks assurances that Iraq will comply with the Treaty after extradition, his request is more appropriately directed to the State Department, which “has the power to attach conditions to an order of extradition.” Kin-Hong, 110 F.3d at 110.

VII.

Because the extradition court's probable cause determination is supported by competent evidence, Al-Nouri has not shown that the political exception applies to bar his extradition, and his other claims are foreclosed by precedent, we affirm the district court's denial of Al-Nouri's petition for writ of habeas corpus.

AFFIRMED.

I concur with the outcome of the majority opinion and write only to clarify my position on the application of the political offense exception in this case.

For the reasons discussed in the dissent, I find that an uprising, as defined under the political offense exception, existed at the time of Petitioner's alleged crimes. Quinn v. Robinson, 783 F.2d 776, 806–07 (9th Cir. 1986). I concur, however, with the majority opinion's conclusion that Petitioner fails to meet his burden of demonstrating that the “incidental to” prong is met.

Under Quinn, for the two murders to be “incidental to” the domestic uprising, that is the Sunni insurgency, the crimes must be “related to or connected with” the Sunni insurgency. Quinn, 783 F.2d at 810 (“All that the courts should do is determine whether the conduct is related to or connected with the insurgent activity.”). Petitioner contends that the murders are incidental to the Sunni insurgency because there is no evidence that the group responsible for the murders pursued civilian targets nor supported AQI's international efforts. He further argues there is no evidence that the two police officers were murdered to establish a transnational caliphate. These “absence-of-evidence” arguments do not get to the heart of the “incidental to” test, which requires Petitioner to demonstrate a nexus between the crimes and the domestic insurgency. See Barapind v. Enomoto, 400 F.3d 744, 751 (9th Cir. 2005) (“[T]he fugitive has the burden of showing a factual nexus between the crime and the political goal.”).

Petitioner's focus on the fact that the murders were carried out by local Iraqi people does not provide the connection between the murders and the Sunni insurgency. For the reasons explained in the majority opinion, the record supports a conclusion that the murders were committed by “individuals acting on behalf of AQI,” not members of the Sunni insurgency. According to the government's expert, Professor Whiteside, AQI “was a distinct outlier in the Sunni resistance milieu,” and pursued a “campaign to assassinate police officers.” Local AQI leaders in Fallujah were specifically instructed to kill Iraqi policemen. This policy of targeting police officers “was unpopular among Sunni militant groups that had other motives.” Professor Whiteside opined that “[i]n a city like Fallujah, which is almost exclusively Sunni, it was almost certain by the hiring practices of the day that both victims were local Sunni Iraqis.” Petitioner does not refute this piece of evidence.

Petitioner ultimately fails to demonstrate that the murders of two likely Sunni police officers at the hands of AQI members are “incidental to,” “in furtherance of,” or “in the course of,” the Sunni insurgency. Quinn, 783 F.2d at 809. Although the murder of a police officer may, in some cases, be incidental to a domestic uprising—particularly given that individuals serving as peace officers are commonly killed during such uprisings—Petitioner has not met his burden of showing that this was the case here. Id. at 797, 809.

Although I agree with the majority opinion in all other respects, in my view the political offense exception applies. I therefore respectfully dissent.

The majority opinion correctly notes that the incidence test, which defines whether a crime is a relative political offense, has two components: first, there must be “an ‘uprising,’ ‘rebellion,’ or ‘revolution’ ”; second, there must be “a nexus between the act and the uprising.” Quinn v. Robinson, 783 F.2d 776, 806, 809 (9th Cir. 1986); see also Barapind v. Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005) (en banc) (per curiam) (reaffirming Quinn's articulation of the test). We review for clear error the extradition court's findings of fact, and we review de novo legal conclusions and mixed issues of law and fact. Quinn, 783 F.2d at 791. “[T]he question whether the crime was incidental to a political uprising” is a mixed determination that we review de novo. Id.

1. The Extradition Court's Findings

The basic facts are undisputed. Petitioner is a native of Iraq, and he lived in Fallujah in 2006. The Iraqi government alleges that, in 2006, Petitioner murdered two Iraqi police officers at the direction of Al-Qaeda in Iraq (“AQI”), an organization in which Petitioner was a local leader. And, as the extradition court stated, “there was a violent Sunni insurgency in Iraq in 2006” against the Iraqi government.

Nevertheless, the extradition court concluded that the crimes were not political offenses because “AQI in 2006 was not part of an internal ‘uprising or other violent political disturbance’ within the meaning of ․ Quinn.” The court reached that conclusion due to three findings. First, the court found that “AQI was an international and transnational terrorist group committing violence in multiple nations besides Iraq.” According to the government's expert, “AQI's regional commanders in Iraq were not Iraqi natives” and “were responsive to higher-level leaders in Pakistan.” And AQI's goals extended beyond simply overthrowing the Iraqi government; after the fall of the Iraqi regime, it wanted to “subsume the Iraqi nation within a caliphate” that “would include part of Iraq, Kuwait, Syria, and Turkey.” Second, the court found that “AQI often stood in violent opposition to other Sunni insurgent groups in Iraq.” Those “ ‘local grassroots movement’ groups violently opposed AQI's attempt to dominate the domestic insurgency and impose AQI's goals.” Third, the court noted that, “in contrast to AQI, indigenous insurgents did not target police officers.”

I agree with the majority opinion that the extradition court's findings of fact are not clearly erroneous. But the extradition court's conclusion that the murders were not incident to the indigenous uprising—because they were directed by AQI, a group that acted within Iraq but that had international leadership and different goals and tactics from other insurgent groups—is a mixed issue of law and fact that we must review de novo. See Quinn, 783 F.2d at 791. Indeed, Quinn specified that each prong of the incidence test raises mixed issues of law and fact. Id. at 791, 812; see id. at 812 (noting that the district court improperly construed the extradition court's determination about whether an uprising existed “solely as a finding of fact”).

2. The Existence of an Uprising

To determine whether an uprising exists, we consider the “level of violence” that exists “within the country or territory in which those rising up reside.” Vo v. Benov, 447 F.3d 1235, 1241 (9th Cir. 2006) (quoting Quinn, 783 F.2d at 807); see also Quinn, 783 F.2d at 807 (“[T]he uprising component serves to exclude from coverage under the [political offense] exception criminal conduct that occurs outside the country or territory in which the uprising is taking place.”). We therefore ask whether, when Petitioner's alleged crimes occurred, a sufficient level of violence existed in Iraq that was generated by residents of Iraq. As the parties readily agree, that condition was met. In 2006, Iraqi natives were engaged in a violent uprising against the Iraqi government. Accordingly, an uprising existed at the time of Petitioner's alleged crimes.

AQI's activities in other countries are irrelevant to whether an uprising existed in Iraq. Nor does AQI's status as an “international terrorist organization” mean that Petitioner's alleged crimes do not fall within the political offense exception. See Quinn, 783 F.2d at 806 (“[I]t is the international terrorist who has interfered with the rights of others to exist peacefully under their chosen form of government.”). In 2006, Iraqis were not “exist[ing] peacefully under their chosen form of government.” Id. Rather, many Iraqis—Petitioner included—were rising up against their government.

Quinn is not to the contrary. Quinn states that “[a]cts of international terrorism do not meet the incidence test and are thus not covered by the political offense exception.” 783 F.2d at 817 (emphasis added). But Quinn did not concern the type of situation at issue here: an act planned and committed by a native of a particular country, that took place within that country, with direction from an organization that acted within that country but also acted internationally—put simply, a local act with some foreign component. Quinn expressly denied that it was creating a “new mechanism” to exclude acts of international terrorism from the political offense exception; rather, it applied the standard “incidence” test to the facts at issue there. Id. at 806.

Quinn reasoned that “international terrorism” does not meet the “uprising” prong because “an ‘uprising’ can exist only when the turmoil that warrants that characterization is created by nationals of the land in which the disturbances are occurring.” Id. at 807. Such nationals must be “seeking to change the form of the government under which they live.” Id. at 818. Accordingly, “terrorism or other criminal conduct exported to other locations” does not constitute an uprising. Id. at 813–14 (emphasis added). As the extradition court found here, and as the majority opinion recognizes, there was an uprising in Iraq in 2006, and it was led by indigenous insurgent groups. That fact alone distinguishes this case from Quinn and its progeny.

In Quinn, a member of the Irish Republican Army allegedly sent letter bombs to London, but the British were not engaged in an uprising. 783 F.2d at 813 (determining that Quinn “conducted [his] struggle in a country in which the nationals and residents were not attempting to alter their own political structure”). 1 In Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981), which we analyzed in Quinn, a member of the Palestinian Liberation Organization from outside Israel bombed civilians in Israel. See Quinn, 783 F.2d at 807 (stating that no uprising existed in Eain because “Israelis are not engaged in revolutionary activity directed against their own government”; thus, “[w]hen PLO members enter Israel and commit unlawful acts, there is simply no uprising for the acts to be incidental to”). In Vo, a native of Vietnam attempted to bomb a Vietnamese embassy in Thailand, but no uprising existed in Thailand at that time. See 447 F.3d at 1238, 1244–45. By contrast to each of those cases, and as all parties and the majority opinion agree, an internal uprising to overthrow the government existed in Iraq in 2006.

3. Nexus Between the Murders and the Uprising

The nexus requirement is liberally construed, with certain conditions. Quinn, 783 F.2d at 809. The crime at issue must occur within “the geographic confines of the uprising” and must be “causally or ideologically related to the uprising.” Id.; see also Barapind, 400 F.3d at 751 n.9 (noting that, in “exceptional circumstances,” “the relationship between the political goal and the act” may be “too tenuous” to meet the nexus requirement).

Petitioner carried his burden of demonstrating that the crimes of which he is accused were related to the uprising. See Barapind, 400 F.3d at 751 (“Under Quinn, a court may not rely on a fugitive's mere assurance that a crime had some political purpose.”); id. at 752 (concluding that the nexus requirement was not met because the petitioner “provided no evidence at all to explain the motive” for the crime (emphasis added)). As we suggested in Quinn, it may be difficult for a petitioner both to maintain innocence and to supply proof of the motive for a crime. See 783 F.2d at 809. Accordingly, we “examine all of the circumstances surrounding the commission of the crime[s],” id., including the nature of the acts and how they were planned, id. at 810, to determine whether a nexus exists to the uprising. Our inquiry “must be applied in an objective, non-judgmental manner. It is for the revolutionaries, not the courts, to determine what tactics may help further their chances of bringing down or changing the government.” Id.

According to the Iraqi government's cooperating witness, Petitioner met with a small group of co-conspirators in Fallujah and planned to kill Lieutenant Hussein and Officer Mohammad. And both Petitioner's and the government's expert reports reflect that the murder of police officers was meant to weaken the Iraqi government by discouraging people from working for the government. That evidence establishes that Petitioner's alleged crimes are “ideologically related to the” indigenous uprising's opposition to the Iraqi government. Id. at 809; cf. id. at 811 (“A murder of a police officer is related to an uprising whether the reason for the act is to avoid discovery of munitions or to avoid reduction of ‘forces’ by capture.”).

The extradition court, relying on the government's expert, determined that there was no nexus because AQI's methods of opposing the government differed from those of other insurgent groups. AQI assassinated police officers, a tactic that Sunni insurgent groups eschewed because many police officers were Sunni. But the extradition court legally erred by determining that those differences in tactics meant there was no nexus to the uprising's goal. Even if Petitioner's membership in AQI placed him at tactical odds with other local insurgents, including local Sunni insurgents, his alleged actions clearly reflect that he shared their opposition to the existing Iraqi government and their goal of overthrowing that government. See id. at 804 (acknowledging that “today's struggles are often carried out by networks of individuals joined only by a common interest in opposing those in power”); id. at 809 (explaining that membership in a particular organization is not determinative of the nexus inquiry).

The extradition court further erred by distinguishing AQI from other insurgents based on AQI's ultimate vision for the region. It does not matter whether everyone agreed about how they wanted to proceed once the current government was overthrown, whether by installing a different regime or redrawing regional borders. “It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal.” Id. at 804–05 (emphasis added). 2

Moreover, the relevant “insurgent” is Petitioner, not AQI's higher-level leaders. Petitioner is the one facing extradition for murdering police officers. Our inquiry therefore must focus on his actions and his motivations. See Quinn, 783 F.2d at 807 (considering the goals of “those engaged in [the] violence” at issue). The extradition court erred by focusing on AQI's goals. The court correctly observed that “it matters who the insurgents were who carried out the murders,” but mistakenly focused on AQI as a whole rather than on Petitioner. There is no suggestion that Petitioner acted on AQI's behalf in any other country. Rather, his alleged actions—planning and executing the murders—were local and bore a clear nexus to the uprising against the Iraqi government.

For the foregoing reasons, I conclude that the political offense exception applies to Petitioner's alleged crimes. To summarize: Petitioner acted entirely within Iraq, his home country, where an indigenous uprising was taking place, with the goal of overthrowing his own government. Though Petitioner's alleged acts are abhorrent, Article III of the Treaty bars his extradition.

FOOTNOTES

1.   An order certifying extradition is not final for purposes of 28 U.S.C. § 1291 and cannot be challenged on direct appeal but instead may be challenged only through a petition for a writ of habeas corpus. Santos v. Thomas, 830 F.3d 987, 1001 (9th Cir. 2016) (en banc).

2.   The Treaty was signed at Baghdad on June 7, 1934, and entered into force on April 23, 1936. 49 Stat. 3380; T.S. No. 907. It is currently in force between the United States and Iraq.

3.   The Al-Qaeda group operating in Iraq at the time of the murders was known by the U.S. government and the international media as “al-Qaeda in Iraq,” or AQI.

4.   The investigative documents supporting the extradition request include two versions of Eyewitness 1's statement, one from the Office of Counterterrorism (described in text) and one from the Investigative Court. In the version from the Investigative Court, Eyewitness 1 stated that after the gun malfunctioned, Al-Nouri, who was not wearing a mask, approached, pulled out a gun, and said, “[L]eave him, this is 1st Lieutenant Issam [Hussein] and he serves as a policeman.” One of the other masked men told Al-Nouri, “[S]tep back, it is not your business,” and then another man shot Lieutenant Hussein multiple times with an AK-47, killing him.

5.   Both experts offered limited testimony at the extradition hearing; the parties primarily relied on the experts' reports to support their arguments. We summarize the experts' reports for brevity but note that both experts prepared comprehensive and detailed reports supported with citations to authoritative sources.

6.   This group eventually became “the Islamic State,” which is also known as ISIS, ISIL, and Daesh. According to Professor Whiteside, the Islamic State “is a transnational Salafi-jihadist militant group and internationally designated terrorist organization. Its leadership is largely centered in Iraq and Syria, and it leads a global insurgency to establish an Islamic caliphate that spans from West Africa to East Asia.”

7.   Zarqawi was killed by an American airstrike in Iraq a few days after Lieutenant Hussein's murder, and he was replaced by an Egyptian, Abu Hamza al-Muhajir. According to Professor Whiteside, even after Zarqawi's death, foreign fighters led AQI's northern and southern regions as late as 2008. Professor Whiteside further explained that between August 2006 and August 2007, captured records identify more than 700 foreign fighters entering Iraq at just one of several border crossings.

8.   In his reply, Al-Nouri relies on United States v. Kin-Hong, 110 F.3d 103 (1st Cir. 1997), to argue that the court should depart from Rana and conduct a “more searching review” of the probable cause finding. In Kin-Hong, the First Circuit stated that it was “arguable” that the “ ‘any evidence’ standard is an anachronism, and that [the] court should engage in a more searching review of the magistrate[ ] [judge's] probable cause findings.” Id. at 117. We reject Al-Nouri's argument that we can apply the First Circuit's suggestion, rather than the Ninth Circuit precedent that governs our review of the probable cause determination.

9.   Article III of the Treaty includes an exception from extradition for political offenses, and provides in relevant part:The provisions of this Treaty shall not import claim of extradition for crimes of a political character nor for acts connected with such crimes; and no person surrendered by or to either of the High Contracting Parties in virtue of this Treaty shall be tried or punished for a political crime.

10.   The Fourth Circuit criticized our decision in Quinn as defining a political offense “as any common crime that occurs during a political uprising so long as the accused claims a political motive connected to the uprising.” See Ordinola v. Hackman, 478 F.3d 588, 604 (4th Cir. 2007) (describing the “subjective test” in Quinn). But this criticism is refuted by our decision in Barapind, 400 F.3d at 751, in which we clarified that a mere claim of a political purpose is insufficient to establish that the political offense exception applies to bar extradition.

11.   Evidence that a crime was committed for monetary gain negates the applicability of the political offense exception. Quinn, 783 F.2d at 810 (explaining that the exception “is not designed to protect mercenaries or others acting for nonpolitical motives”). Here, the cooperating witness stated that Al-Nouri and his associates were paid for one of the murders. While such evidence could preclude application of the political offense exception, here it is limited to a single, unexplained statement from the cooperating witness, and the extradition court did not rely on it to determine whether Al-Nouri had established that the exception applies. We also decline to rely on this statement in reviewing the extradition court's determination.

12.   We acknowledge that the extradition court “assumed” that the murders were committed by AQI and, thus, may not have made a factual finding. Regardless, the record supports this determination and it was Al-Nouri's burden to establish that the political offense exception applies.

13.   Al-Nouri argues that “non-indigenous persons often become involved in indigenous uprisings,” and their presence and involvement is nonetheless “incidental to” the uprising. He cites the Marquis de Lafayette and his involvement in the American Revolution as an example of a non-indigenous person who became part of a domestic insurgency. In this argument Al-Nouri suggests that Lafayette can be compared to Zarqawi, the Jordanian jihadist who formed AQI in Afghanistan and led its fighters in Iraq and other parts of the region. The comparison fails, however, because Lafayette did not join the American Revolution to increase the violence and chaos in the colonies, while at the same time conducting terrorist attacks in other countries, all with the goal of establishing a religious state spanning parts of the colonies and several other countries. Zarqawi, in contrast, established AQI's base of operations in Iraq to conduct violent attacks within Iraq and in other countries in the region to further its goal of establishing a caliphate, or regional religious state.

14.   Al-Nouri argues that the Ninth Circuit “has not rejected the humanitarian exception out-of-hand” and suggests that we could recognize a humanitarian exception in his case. But we have never recognized the exception that Al-Nouri proposes, and we decline to do so now. Prasoprat, 421 F.3d at 1016 (“We have, on occasion, cited the possibility of a humanitarian exception to extradition; however, we have never actually ‘relied on it to create’ such an exception.” (citation omitted)); see also Kapoor v. DeMarco, 132 F.4th 595, 612 n.18 (2d Cir. 2025), cert. denied, ––– U.S. ––––, 146 S. Ct. 325, 223 L.Ed.2d 162 (2025) (noting that no federal court has applied a humanitarian exception to grant habeas relief in an extradition case).

1.   In Quinn, no majority of the court agreed as to whether England and Northern Ireland should be treated as separate countries for purposes of the incidence test. See 783 F.2d at 782 n.*. But a majority agreed that a relative political offense can take place only in a country in which an indigenous uprising is occurring. Id. at 782 n.*, 807.

2.   “[E]vidence that an act was ‘committed for purely personal reasons’ ” may “rebut any presumption that a nexus exists.” Quinn, 783 F.2d at 810 (citation omitted). But the extradition court did not find that Petitioner committed the crimes for purely personal reasons.

BADE, Circuit Judge:

Opinion by Judge Bade; Concurrence by Judge Navarro; Dissent by Judge Graber