United States v. Ahmed Al-Nouri V. Rubio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALI YOUSIF AHMED AL-NOURI,

Plaintiff - Appellant,

v.

MARCO RUBIO, United States
Secretary of State; MERRICK B.
GARLAND, Attorney General,
United States Attorney General;
DAVID GONZALES, United States
Marshal, District of Arizona; KRIS
KLINE, Complex Warden, Central
Arizona Florence Correctional
Complex; VAN BAYLESS,

Defendants - Appellees.
No. 24-6341
D.C. No.
2:22-cv-00633-
GMS

OPINION

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding

Argued and Submitted October 24, 2025
Phoenix, Arizona

Filed August 12, 2026

2 AL-NOURI V. RUBIO
Before: Susan P. Graber and Bridget S. Bade, Circuit
Judges, and Gloria M. Navarro, District Judge.
*

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

SUMMARY
**

Habeas Corpus / Extradition

The panel affirmed the district court’s denial of Ali
Yousif Ahmed Al-Nouri’s petition for a writ of habeas
corpus petition under 28 U.S.C. § 2241 in which he sought
relief from an order certifying his extradition to the Republic
of Iraq to be tried on two counts of premeditated murder.
Al-Nouri is a naturalized United States citizen who was
born in Iraq and fled to Syria before coming to the United
States. The Iraqi government alleges that Al-Nouri was a
local leader of a group of international terrorists known as
Al-Qaeda in Iraq, or AQI, operating in Fallujah, Iraq.
Al-Nouri argued that relief is warranted because the
charges are not supported by probable cause. The panel held
that competent evidence supports the extradition court’s
probable cause findings for the charges that Al-Nouri

*
The Honorable Gloria M. Navarro, United States District Judge for the
District of Nevada, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

AL-NOURI V. RUBIO 3
participated in the two murders. The panel also held that the
district court properly concluded that declarations obtained
from the investigative group One World Research should not
be considered as part of the probable cause determination,
where these declarations contained inadmissible
contradictory evidence and did not completely obliterate
Iraq’s evidence demonstrating probable cause.
Al-Nouri argued 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
Extradition Treaty between the United States and Iraq. The
panel held that Al-Nouri failed to establish that the political
offense exception applies. 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, the
panel agreed 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.
Al-Nouri argued that the inadequacy of the Iraqi judicial
system and deplorable humanitarian conditions in that
country warrant the denial of extradition. Rejecting this
argument, the panel held that the extradition and reviewing
courts properly declined to consider whether a humanitarian
exception to extradition should apply in this case.

4 AL-NOURI V. RUBIO
Al-Nouri argued that Iraq intends to investigate and
prosecute him for charges beyond those identified in the
extradition request, in violation of the Treaty. The panel
explained that, as the district court correctly concluded, this
argument is speculative and thus outside the scope of habeas
review.
Concurring, District Judge Navarro wrote to clarify her
position on the application of the political offense exception
in this case. In her view, an uprising, as defined under the
political offense exception, existed at the time of Al-Nouri’s
alleged crimes, but Al-Nouri failed to meet his burden of
demonstrating that the two murders were “incidental to” the
Sunni insurgency.
Judge Graber dissented. She agreed with the majority
opinion in all other respects, but in her view the political
exception applies. As all parties and the majority opinion
agree, an internal uprising to overthrow the government
existed at the time of the alleged murders. In addition, Al-
Nouri demonstrated that the crimes of which he is accused
were related to the uprising. The extradition court legally
erred by determining that differences between the tactics of
AQI and those of other insurgent groups meant there was no
nexus to the uprising’s goal, where Al-Nouri’s alleged
actions clearly reflect he shared their opposition to the
existing Iraqi government and their goal of overthrowing
that government. The extradition court further erred by
focusing on AQI’s goals rather than on Al-Nouri’s actions
and motivations. There is no suggestion that Al-Nouri acted
on AQI’s behalf in any other country. Rather, his alleged
actions were local and bore a clear nexus to the uprising
against the Iraqi government. The political offense
exception therefore applies, and Article III of the Treaty bars
his extradition.

AL-NOURI V. RUBIO 5
COUNSEL
David Eisenberg (argued), David Eisenberg PLC, Raleigh,
North Carolina, for Plaintiff-Appellant.
Jillian M. Besancon (argued) and Amy Chang, Assistant
United States Attorneys; William G. Vot, Appellate Division
Chief; Timothy Courchaine, United States Attorney; Office
of the United States Attorney, United States Department of
Justice, Phoenix, Arizona; Kerry A. Monaco, Trial Attorney,
Fraud Section, Criminal Division, United States Department
of Justice, Washington, D.C.; for Defendants-Appellees.

OPINION
BADE, Circuit Judge:
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

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).

6 AL-NOURI V. RUBIO
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.

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.

AL-NOURI V. RUBIO 7
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

8 AL-NOURI V. RUBIO
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.

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.

AL-NOURI V. RUBIO 9
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

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.

10 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 11
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

12 AL-NOURI V. RUBIO
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.

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.”

AL-NOURI V. RUBIO 13
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

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

14 AL-NOURI V. RUBIO
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

than 700 foreign fighters entering Iraq at just one of several border
crossings.

AL-NOURI V. RUBIO 15
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

16 AL-NOURI V. RUBIO
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, 145 S. Ct.
1128 (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

AL-NOURI V. RUBIO 17
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

18 AL-NOURI V. RUBIO
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

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.

AL-NOURI V. RUBIO 19
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

20 AL-NOURI V. RUBIO
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 (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.”);

AL-NOURI V. RUBIO 21
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

22 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 23
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

24 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 25
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.

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.

26 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 27
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

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.

28 AL-NOURI V. RUBIO
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

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.

AL-NOURI V. RUBIO 29
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

30 AL-NOURI V. RUBIO
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

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.

AL-NOURI V. RUBIO 31
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

32 AL-NOURI V. RUBIO
“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

AL-NOURI V. RUBIO 33
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

34 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 35
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

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.

36 AL-NOURI V. RUBIO
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.

AL-NOURI V. RUBIO 37
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

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, 146 S. Ct. 325 (2025) (noting that no federal court
has applied a humanitarian exception to grant habeas relief in an
extradition case).

38 AL-NOURI V. RUBIO
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, 146 S. Ct. 149 (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.

AL-NOURI V. RUBIO 39
NAVARRO, District Judge, concurring:

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

40 AL-NOURI V. RUBIO
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.

AL-NOURI V. RUBIO 41
GRABER, Circuit Judge, dissenting:

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

42 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 43
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

44 AL-NOURI V. RUBIO
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

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.

AL-NOURI V. RUBIO 45
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

46 AL-NOURI V. RUBIO
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

AL-NOURI V. RUBIO 47
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

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.

48 AL-NOURI V. RUBIO
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.