                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-6468


ALMAZ NEZIROVIC,

                Petitioner - Appellant,

           v.

GERALD S. HOLT, United States Marshal, Western District of
Virginia; BOBBY D. RUSSELL, Superintendent, Western Virginia
Regional Jail,

                Respondents - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:13-cv-00428-MFU; 7:12-mc-00039-RSB)


Argued:   December 10, 2014            Decided:   February 25, 2015


Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit
Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Chief Judge Traxler and Judge Thacker joined.


ARGUED: Andrew Wagner Childress, PAFFORD, LAWRENCE & CHILDRESS,
PLLC, Lynchburg, Virginia, for Appellant.  Elizabeth G. Wright,
OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia,
for Appellees.    ON BRIEF: Timothy J. Heaphy, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellees.
BARBARA MILANO KEENAN, Circuit Judge:

      Almaz      Nezirovic,     a    citizen        of   Bosnia     and     Herzegovina,

entered the United States as a refugee in 1997 in the wake of

the war in the former country of Yugoslavia.                          In 2012, Bosnia

and Herzegovina requested Nezirovic’s extradition based on war

crimes he allegedly committed during the conflict.                          A magistrate

judge in the Western District of Virginia issued a certification

of    extraditability,         finding    that       Nezirovic        was    subject   to

extradition under a treaty between the United States and Bosnia

and Herzegovina.

      Nezirovic filed a petition in the district court for habeas

corpus relief under 28 U.S.C. § 2241 to challenge the magistrate

judge’s certification.              The district court denied Nezirovic’s

petition.        Nezirovic now appeals, arguing that his extradition

is barred (1) under the applicable statute of limitations, and

(2)   by   the    exemption     provided       in    the     treaty    for    “political

offenses.”        Upon   our    review,    we       affirm    the   district     court’s

judgment.


                                          I.

      In the early 1990s, the former Socialist Federal Republic

of Yugoslavia (Yugoslavia) collapsed, leading to a state of war

between the country’s ethnic groups.                       One of the constituent

republics of Yugoslavia was the Socialist Republic of Bosnia and


                                          2
Herzegovina.         Between April and December 1992, Nezirovic served

as a member of the Croatian Defense Council (HVO, abbreviated

from its Croatian name), a paramilitary group that deemed itself

“the supreme defense body of the Croat people in Herzeg-Bosnia.”

Nezirovic testified that he joined the HVO to protect himself

and his family during the conflict after Serbian troops attacked

Nezirovic’s hometown.             As a member of the HVO, Nezirovic was

stationed as a guard at the Rabic internment camp in Bosnia and

Herzegovina,        which     held      in   confinement      persons     of     Serbian

descent.

     In    January        1993,   the    Doboj      Police   Department    of     Bosnia

issued    a    criminal     report      against      Nezirovic,   accusing       him    of

committing war crimes against civilians while a guard at the

Rabic     camp.       According      to      Bosnian     authorities,          Nezirovic

engaged       in    the    “individual       and     group   torture     and    inhuman

treatment      of    civilians     of     Serb     nationality”   detained       at    the

camp,     “causing        great   physical         and   emotional     suffering       and

serious injuries.”          Bosnian authorities alleged that

     [Nezirovic] personally beat prisoners using his arms
     and legs, his rifle, batons or sticks, and other
     objects. The treatment included threats of death, and
     the detained Serbian civilians were forced to endure
     starvation and other severe adverse health conditions.
     [Nezirovic] further exposed these Serbian civilians to
     great humiliation by forcing them to remove their
     clothing and to crawl on the ground, putting their
     noses in others’ anuses, and to eat grass on which
     others had urinated.   [Nezirovic] also forced Serbian
     civilians to expose three specific fingers (ones the

                                              3
       prisoners, in the Orthodox tradition prevailing in the
       Serb community, would use for praying) on a table and
       he would then strike their fingers and the rest of
       their bodies using a rubber baton or stick.

       A   judge    in    Bosnia      and   Herzegovina     issued    a    warrant    for

Nezirovic’s arrest in 2003, six years after Nezirovic entered

the United States.             In 2012, Bosnian authorities made a request

to the United States Department of State for Nezirovic’s arrest

and extradition pursuant to the Treaty Between the United States

and Servia 1 for the Mutual Extradition of Fugitives from Justice,

U.S.-Serb.,        Oct.    25,     1901,     32    Stat.   1890    (treaty). 2         The

extradition request was accompanied by the statements of twenty-

one   witnesses,         who   claimed      that   Nezirovic      committed    acts    of

torture.

       After determining that the extradition request was governed

by a treaty, the Department of State referred the request to the

Department of Justice, which represents foreign governments in

extradition proceedings conducted in United States courts.                            See

generally Gon v. Holt, 774 F.3d 207, 210 (4th Cir. 2014).                            Based

on    Nezirovic’s        place   of    residence     in    Roanoke,   Virginia,       the


       1
        At the time the treaty was                         drafted,       “Serbia”     was
translated with the spelling “Servia.”
       2
       The    treaty was in force between the United States                           and
Yugoslavia    at the time of the alleged crimes.      Following                       the
dissolution    of Yugoslavia, the treaty has applied to Bosnia                        and
Herzegovina    as a successor state.     See In re Extradition                         of
Handanović,   829 F. Supp. 2d 979, 985 (D. Or. 2011).


                                              4
United    States     Attorney      for   the    Western     District    of    Virginia

filed an extradition complaint for review by a magistrate judge

in that district.          See id.       After an evidentiary hearing, the

magistrate        judge   concluded      that        Nezirovic    was   subject     to

extradition       under   the   treaty     and    entered     a   certification     of

extraditability.          The district court later denied Nezirovic’s

habeas corpus petition.           This appeal followed.



                                          II.

     A    magistrate      judge    conducting        extradition    proceedings     is

required to evaluate whether “the evidence [is] sufficient to

sustain the charge” under the terms of the treaty.                           18 U.S.C.

§ 3184.      The limited purpose of an extradition hearing is to

determine “(1) whether there is probable cause to believe that

there has been a violation of the laws of the foreign country

requesting extradition, (2) whether such conduct would have been

criminal if committed in the United States, and (3) whether the

fugitive     is    the    person    sought      by    the   foreign     country    for

violating its laws.”        Gon, 774 F.3d at 210 (citation omitted).

     If the magistrate judge determines that these requirements

have been met and that the applicable treaty does not otherwise

bar extradition, the magistrate judge issues to the Secretary of

State of the United States a certification of extraditability.

18 U.S.C. § 3184; Gon, 774 F.3d at 210; Mironescu v. Costner,

                                           5
480 F.3d 664, 665 (4th Cir. 2007).                   An individual who is the

subject of such a certification may challenge the magistrate

judge’s finding only by filing a petition for a writ of habeas

corpus.    Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007).

     “Habeas corpus is available only to inquire whether the

magistrate [judge] had jurisdiction, whether the offense charged

is within the treaty and . . . whether there was any evidence

warranting    the    finding     that   there       was   reasonable      ground   to

believe    the    accused    guilty     of    the    asserted     crimes.” 3       Id.

(quoting    Fernandez       v.   Phillips,     268    U.S.      311,    312   (1925))

(internal quotation marks and brackets omitted).                       The Secretary

of State makes the final determination whether to extradite the

fugitive     to     the    requesting        country,     considering         “factors

affecting    both    the    individual       defendant     as    well    as   foreign

relations—factors that may be beyond the scope of the judge’s

review.”     Mironescu, 480 F.3d at 666 (internal quotation marks,

alterations, and citation omitted); Gon, 774 F.3d at 210; 18

U.S.C. §§ 3184, 3186.




     3
       We have held that in certain circumstances, district
courts considering a habeas corpus petition may also consider
claims that a fugitive’s extradition would violate the United
States Constitution or a federal statute.    See Mironescu, 480
F.3d at 670-73; Plaster v. United States, 720 F.2d 340, 349 (4th
Cir. 1983).


                                         6
      The United States and Serbia ratified the treaty at issue

in this case in 1902. 4           The parties to the treaty agreed to the

extradition of persons who have “been charged with or convicted

of” specified crimes in either country, “upon such evidence of

criminality as, according to the laws of the place where the

fugitive or person so charged shall be found, would justify his

or her apprehension and commitment for trial if the crime or

offense had been committed there.”                 Treaty art. I.         Although not

initially      listed      in    the   treaty      as     an    offense     for     which

extradition       was    available,     the     offense    of   torture      became    an

extraditable crime when the United Nations Convention Against

Torture    and    Other     Cruel,     Inhuman     or     Degrading      Treatment    or

Punishment (CAT) was incorporated into the treaty in 1994.

      In the present case, Nezirovic does not dispute that he is

the   person      sought    by    Bosnian       authorities       for    violation     of

certain laws of Bosnia and Herzegovina, and that the conduct

alleged by the Bosnian authorities would have been criminal if

committed in the United States.                 See Gon, 774 F.3d at 210.             Nor

does Nezirovic dispute that, subject to the treaty exceptions he

argues    here,    the     statements    of     the     twenty-one       witnesses    are

sufficient to establish probable cause to support a finding that

there     have     been     violations        of   the     laws     of     Bosnia     and

      4
       Nezirovic does not contest that this treaty is applicable
to the present request for his extradition.


                                            7
Herzegovina.        See   id.        Instead,      Nezirovic     alleges   that    two

provisions in the treaty prevent his extradition for the alleged

offenses.

     The    first    treaty      provision         on    which   Nezirovic     relies

prohibits extradition for offenses that are time-barred in the

surrendering country.        Article VII of the treaty provides that

     [e]xtradition shall not be granted, in pursuance of
     the provisions of this Treaty, if legal proceedings or
     the enforcement of the penalty for the act committed
     by the person claimed has become barred by limitation,
     according to the laws of the country to which the
     requisition is addressed.

     The    second    provision       of    the    treaty    cited    by   Nezirovic

exempts from extradition “political offenses.”                       Article VI of

the treaty states that

     [a] fugitive criminal shall not be surrendered if the
     offense in respect of which his surrender is demanded
     be of a political character, or if he proves that the
     requisition for his surrender has, in fact, been made
     with a view to try or punish him for an offense of a
     political character.

We address in turn Nezirovic’s challenges under these articles

of the treaty.

                                            A.

     We first consider Nezirovic’s claim that his extradition is

barred by the statute of limitations applicable to his charged

offenses.      He    contends        that    the    magistrate     judge     and   the

district    court    erred      in   applying      the    indefinite   limitations

period in the United States Torture Act (the Torture Act or the

                                            8
Act), 18 U.S.C. § 2340A.              He asserts that although the Torture

Act is the United States statute most analogous to his alleged

Bosnian crimes, application of the Act’s statute of limitations

would violate ex post facto principles because the Act became

effective       two     years     after        his       alleged    conduct     occurred.

Nezirovic      urges     us    instead    to       use    the   five-year     statute    of

limitations applicable to the crime of assault under 18 U.S.C.

§ 113.        See 18 U.S.C. § 3282 (establishing general five-year

statute of limitations for non-capital offenses).                             We disagree

with Nezirovic’s arguments.

       We     apply    the     statute    of       limitations      applicable    to    the

substantive offense under United States law that is most closely

analogous to the charged offenses.                    Sainez v. Venables, 588 F.3d

713, 716 (9th Cir. 2009).                 Because Nezirovic is charged under

the    laws    of     Bosnia    and   Herzegovina          with    war   crimes   against

civilians, including torture and inhuman treatment, the Torture

Act, which criminalizes acts of torture and attempted torture,

is    the   United     States     statute       most      closely    analogous    to    the

charged offenses. 5           There is no statute of limitations under the


       5
       The Torture Act defines “torture” as “an act committed by
a person acting under the color of law specifically intended to
inflict severe physical or mental pain or suffering (other than
pain or suffering incidental to lawful sanctions) upon another
person within his custody or physical control.”       18 U.S.C.
§ 2340.



                                               9
Torture Act when, as here, the acts of torture “resulted in, or

created   a     forseeable     [sic]      risk   of,    death    or   serious      bodily

injury    to    another     person.” 6      18   U.S.C.       § 3286(b);     18    U.S.C.

§ 2332b(g)(5)(B)(i).

      To determine whether Nezirovic is subject to extradition,

we look to the law in place at the time the extradition request

was   made,     not   the     law    in    effect      when    Nezirovic     allegedly

committed the offenses.             See United States ex rel. Oppenheim v.

Hecht, 16 F.2d 955, 956-57 (2d Cir. 1927); Hilario v. United

States, 854 F. Supp. 165, 176 (E.D.N.Y. 1994).                         Therefore, the

treaty    may    be   applied       retroactively      in     this    case   to    render

Nezirovic extraditable for earlier conduct. 7                   See Hecht, 16 F.2d

at 956-57; see also Galanis v. Pallanck, 568 F.2d 234, 237 (2d

Cir. 1977) (noting the “long-established rule that extradition

treaties, unless they contain a clause to the contrary, cover

offenses committed prior to their conclusion”) (citations and

internal quotation marks omitted).                Applying the same reasoning,


      6
        An eight-year statute of limitations applies if the
conduct did not involve the risk of death or serious bodily
injury.   18 U.S.C. § 3286(a). Nezirovic does not contend that
the allegations against him would qualify for the eight-year
limitations period.
      7
       Despite raising an ex post facto challenge to the                          Torture
Act’s statute of limitations, Nezirovic does not argue                            that ex
post facto principles otherwise bar his extradition on                            charges
of torture because that crime was not an extraditable                             offense
under the treaty at the time of his conduct.


                                           10
the   United   States,     as    the    surrendering         state,    may   lengthen

retroactively       the    statute       of    limitations        applicable       to

extraditable conduct.           Cf. In re Extradition of McMullen, 989

F.2d 603, 611-13 (2d Cir. 1993) (en banc) (concluding that a

supplementary     treaty   did    not    violate       the    prohibition     against

bills of attainder when the treaty narrowed the definition of

the   political     offense      exception       to     extradition,     causing     a

fugitive who was previously protected by the exception to be

eligible for extradition).

      Ex post facto principles do not affect this rule to bar the

retroactive     application       of    the      Torture      Act’s     statute    of

limitations.       The Ex Post Facto Clause of the United States

Constitution      “prohibits     laws     that        ‘retroactively     alter     the

definition of crimes or increase the punishment for criminal

acts.’”    United States v. Farrow, 364 F.3d 551, 554 (4th Cir.

2004) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)).

However,   this    constitutional        protection       has    “no    relation   to

crimes committed without the jurisdiction of the United States

against the laws of a foreign country,” as in the case of a

fugitive   facing    extradition       for    crimes     committed      outside    the

United States.      Neely v. Henkel, 180 U.S. 109, 122 (1901); see

also Snider v. Seung Lee, 584 F.3d 193, 201 (4th Cir. 2009)

(“[T]he Supreme Court has made clear that U.S. constitutional

protections do not extend to foreign prosecutions.”).

                                         11
      Our    conclusion       is    not    altered    by   Nezirovic’s         contention

that the terms of the present treaty contain additional ex post

facto     guarantees     that      otherwise     would     not   be    available.       We

construe extradition treaties liberally in favor of surrendering

a   fugitive     to    the    requesting       country,      “in      the    interest   of

justice and friendly international relationships.”                             Factor v.

Laubenheimer, 290 U.S. 276, 298, 303 (1933); In re Extradition

of Handanović, 829 F. Supp. 2d 979, 989 (D. Or. 2011) (citing

Factor, 290 U.S. at 293-94).                 Nezirovic fails to identify any

specific     language     in    the    treaty     granting       any    ex    post   facto

protections to fugitives.                 And we observe that Article VII of

the     treaty    is     silent       regarding       whether      the       surrendering

country’s statute of limitations should be applied based on the

date of the alleged crime or on the date of the extradition

request. 8

        Under    these       circumstances,          we    apply       the     indefinite

limitations period from the Torture Act that was in place at the

      8
       In support of his timeliness argument, Nezirovic relies
heavily on a magistrate judge’s decision from the Eastern
District of Kentucky addressing the same treaty at issue in the
present case.   See In re Extradition of Azra Basic, 2012 U.S.
Dist. LEXIS 104945 (E.D. Ky. July 27, 2012). The court in Basic
concluded that the timeliness provision in Article VII “requires
a hypothetical prosecution, on American soil, of the 1992
conduct.”   Id. at *49-50 n.20.     The court held that ex post
facto principles barred prosecution under the Torture Act for
conduct occurring in 1992 and, thus, that the Act’s statute of
limitations also was inapplicable. Id. at *49. For the reasons
discussed above, we disagree with this reasoning.


                                            12
time of the extradition request.              We therefore conclude that the

request   for     Nezirovic’s      extradition     is       not   time-barred      under

Article VII of the treaty.

                                         B.

     Nezirovic next argues that he is not subject to extradition

because     the    allegations       against      him       constitute       political

offenses exempt from extradition under the terms of the treaty.

He contends that the magistrate judge and the district court

erred in reaching a contrary conclusion, because his alleged

offenses, when viewed objectively, were political in nature, and

because     his     subjective       intent      manifested         his      political

motivations.         We     disagree     with     Nezirovic’s          arguments     and

conclude that the political offense exception does not preclude

his extradition under the treaty.

     The political offense exception of the treaty prohibits the

extradition of a person accused of offenses that are political

in nature.        Ordinola, 478 F.3d at 595.                In addition to “pure”

political offenses, such as treason and espionage, the exception

also protects from extradition persons charged with “relative”

political    offenses,       which      are     “common       crimes     .   .   .    so

intertwined with a political act that the offense itself becomes

a political one.”         Id. at 596.

     To   qualify     for    the   exception      as    a    “relative”      political

offense, the alleged conduct “must have been incidental to or in

                                         13
furtherance of a violent political uprising” that was occurring

in the requesting country at the time of the alleged offenses,

or incidental to quelling such an uprising. 9                  Id. at 596-97, 599-

600.       We    apply     a   two-pronged       test    to   determine   whether   a

fugitive’s actions were incidental to a political disturbance.

We     consider      (1)       whether     the     fugitive        subjectively   was

politically motivated to commit the offenses, and (2) whether

the offenses, when viewed objectively, were political in nature.

Id. at 600.

       The issue whether a person is charged with commission of a

political offense presents a mixed question of law and fact, but

primarily       is   a   question    of    fact.        Id.   at   598.   We   accord

significant deference to the factual findings of the magistrate

judge,     and   will      reverse   the    judge’s      determination     regarding

whether a political offense has been established only if the

determination is “palpably erroneous in law and a reasonable

factfinder would have had no choice but to conclude that the

offender was acting in furtherance of a political uprising.”

Id. (quoting Ornelas v. Ruiz, 161 U.S. 502, 509, 511 (1896))

(internal quotation marks omitted).


       9
       The parties do not contest the magistrate judge’s decision
to take judicial notice of the conflict in Bosnia and
Herzegovina between March 1992 and December 1995 or the judge’s
conclusion that Nezirovic’s alleged conduct occurred during a
violent political uprising.


                                           14
       The   magistrate         judge    concluded         that      Nezirovic’s         alleged

conduct was not subjectively motivated by a political aim, and

that   the   offenses       were       not    political      in      nature       when    viewed

objectively.         In   conducting          our    review,       we      need    not    decide

whether Nezirovic has satisfied the subjective prong of the two-

part test, because we conclude that he cannot demonstrate that

his offenses were political in nature when viewed objectively.

See Ordinola, 478 F.3d at 600-01 (assuming without deciding that

a   fugitive’s    actions        were        motivated     by     subjective            political

considerations,       and       concluding          that    the        offenses        were      not

political when viewed objectively).

       We require that a fugitive make an objective showing that

the    charged     offenses            are     political          in       nature,        because

extradition      treaties        do     not    protect      acts        simply         because    a

fugitive can proffer a subjective political rationale for having

committed    them.        Id.     at    600.        Accordingly,           in    applying        the

objective prong of the test, we “look to the totality of the

circumstances, focusing on such particulars as the mode of the

attack   and   the    identity          of    the    victims.”             Id.    at    601.       A

fugitive’s commission of crimes against innocent civilians is

highly   relevant,        and    likely       is    fatal,      to     a    claim       that   the

offenses were political in nature when viewed objectively.                                     Id.

at 603-04; see also Eain v. Wilkes, 641 F.2d 504, 521 (7th Cir.



                                               15
1981) (explaining that “the indiscriminate bombing of a civilian

populace” is not a political act).

       We   strongly      affirm    our    reasoning       in    Ordinola        that   the

civilian status of victims largely will be determinative of the

objective inquiry.         We previously have relied on the Department

of State’s view that the political offense exception “is not

applicable to violent attacks on civilians,” and have granted

this position great weight in our analysis.                       Ordinola, 478 F.3d

at 603 (citation omitted).            Moreover, the original justification

for the political offense exception, namely, the protection of

the    “inalienable        right     to    resist     and        abolish        tyrannical

governments,”       id.     at     595-96,      is   not    served         by    granting

individuals     refuge     from     extradition      when       they    have     employed

violence against civilians.

       In holding that Nezirovic’s offenses were not political in

nature when viewed objectively, the magistrate judge found that

Nezirovic’s victims were civilians, relying on the language of

the war crimes charge and the representations of the authorities

from Bosnia and Herzegovina.                 The magistrate judge also found

that    “Nezirovic’s       alleged        actions    of     torture        against      his

prisoners [were not done] in furtherance of his military duty to

keep them ‘locked up,’” because his “alleged conduct of beating,

degrading and humiliating prisoners went well beyond his duties

to    guard   the   prisoners.”           Nezirovic       does    not   identify        any

                                           16
contrary facts demonstrating that the magistrate judge clearly

erred in making these factual findings. 10

      We also observe that the international community repeatedly

has   condemned         the       use    of    torture.          See   Convention   Against

Torture     and       Other       Cruel,      Inhuman       or   Degrading   Treatment       or

Punishment        art.        2     (1994)          (“No     exceptional     circumstances

whatsoever, whether a state of war or a threat or war, internal

political     instability           or     any      other    public    emergency,      may   be

invoked     as    a    justification             of      torture.”);    Geneva   Convention

Relative to the Protection of Civilian Persons in Time of War

art. 147, Aug. 12, 1949, 6 U.S.T. 3516 (describing as a “grave

breach” the torture or inhuman treatment of protected persons);

id. art. 3 (“[M]embers of armed forces who have laid down their

arms and those placed hors de combat by . . . detention, or any

other cause, shall in all circumstances be treated humanely, . .

. .”).       The torture of prisoners cannot be justified on the

basis      that   such    torture             has     occurred    in   the   context    of    a

political disturbance.                  See Arambasic v. Ashcroft, 403 F. Supp.

2d 951, 963 (D.S.D. 2005) (“Political strife is not a license

for the military or anyone else to do whatever they wish to the


      10
         Nezirovic’s contention that he believed that his
prisoners were enemy combatants, not civilians, is irrelevant to
our analysis of the objective prong, in which we examine the
nature of the offense from an objective perspective, without
regard to Nezirovic’s subjective motivations.


                                                    17
defenseless that have come under their power.”); cf. Eain, 641

F.2d at 521 (rejecting the contention that “isolated acts of

social violence undertaken for personal reasons” are protected

by the political offense exception “simply because they occurred

during a time of political upheaval”).

     Accordingly, we conclude that, under the totality of the

circumstances     presented,       the     acts       of     torture     allegedly

perpetrated by Nezirovic against civilians preclude application

of the political offense exception.            We therefore hold that this

exception in the treaty does not bar Nezirovic’s extradition. 11



                                      III.

     For these reasons, we hold that Nezirovic’s extradition is

neither    time-barred     nor   precluded     by     the    political        offense

exception    in   the    treaty.      We     affirm    the       district     court’s

judgment    denying     Nezirovic’s    petition       for    a    writ   of    habeas

corpus.

                                                                            AFFIRMED




     11
        Like the magistrate judge and district court, we reject
outright Nezirovic’s argument that he deserves the benefit of
the political offense exception because his crimes were
allegedly lesser in severity than the atrocities committed by
the Bosnian-Serbs.


                                      18
