Oral argument: March 25, 2008
Appealed from: United States Court of Appeals, D.C. Circuit (2007)
HABEAS CORPUS, FEDERAL JURISDICTION, FOREIGN CONVICTIONS, INTERNATIONAL COMITY, MULTINATIONAL MILITARY COALITIONS, IRAQ, DETAINEES
The cases of Munaf v. Geren and Geren v. Omar present the Supreme Court with another chance to address habeas corpus issues raised by the international war on terrorism. Shawqi Ahmad Omar and Mohammed Munaf, both American citizens, were detained in Iraq by United States military forces operating as part of a multi-national military coalition. While still in custody of the U.S. military in Iraq, Omar filed a habeas corpus petition in the D.C. District Court, asking that he either be released or brought to the U.S. for trial. The District Court granted the habeas petition and issued an injunction preventing the U.S. military forces from transferring Omar to Iraqi custody. Munaf, however, was transferred to Iraqi custody, charged, tried, convicted, and sentenced to death by the Central Criminal Court of Iraq. The same D.C. District Court denied Munaf’s petition for a writ of habeas corpus, holding that since he had been convicted in a foreign court, the U.S. federal courts no longer had habeas jurisdiction.
The Secretary of the Army argues that federal courts should not have jurisdiction to hear habeas petitions by anyone detained by a multi-national force, while the habeas petitioners claim that they are in the actual and physical custody of U.S. authorities and so federal courts should have jurisdiction. The District Court and the Court of Appeals distinguished the two cases by recognizing jurisdiction over the American citizen who has not yet been tried in a foreign court (Omar), while denying jurisdiction to the American citizen who was already tried and convicted in Iraq (Munaf). The Supreme Court’s opinion should clarify whether citizenship status, detention by a multinational force, or prior conviction in a foreign court are decisive factors in allowing federal courts to hear habeas petitions.
Munaf v. Geren
1. When an American citizen is detained under the exclusive control of American military authorities abroad, is the jurisdiction of a federal court to entertain his petition for a writ of habeas corpus defeated by the fact that those American military authorities purport to act as a part of a multi-national force and that they propose — with no valid legal authority — to deliver the citizen to a foreign nation for execution of a death sentence imposed by a court of that nation?
2. Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdiction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court’s post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?
3. Did the Court of Appeals err in holding that the jurisdiction of the federal courts over a habeas corpus petition filed by an American citizen detained under the exclusive control of American military authorities abroad turns on whether those authorities propose to deliver him to a foreign nation for prosecution in its courts (in which case the Court of Appeals has held that habeas jurisdiction exists) or for execution of sentence after conviction by the foreign court (in which case the Court of Appeals here holds that jurisdiction ceases to exist)? If this distinction is valid, can the military authorities defeat federal habeas corpus jurisdiction ex post by doing what they did in this case — arranging the conviction and sentencing of their detainee by a foreign court after his habeas petition has been filed?
Geren v. Omar
Respondent, a dual American-Jordanian citizen, voluntarily traveled to Iraq, allegedly committed serious crimes there, was captured in an active combat zone by members of an international military force (the Multinational Force-Iraq), and is being held under international authority by United States military personnel acting as part of that international military coalition and at the request of the Iraqi government. The questions presented are as follows:
1. Whether the United States courts have jurisdiction to entertain a habeas corpus petition filed on behalf of an individual such as respondent challenging his detention by the multinational force.
2. Whether, if such jurisdiction exists, the district court had the power to enjoin the multinational force from releasing respondent to Iraqi custody or allowing respondent to be tried before the Iraqi courts.
Do federal courts have jurisdiction to entertain habeas petitions of American citizens detained by American military authorities operating under a multinational force? If so, does the conviction of an American citizen in a foreign tribunal defeat the federal court jurisdiction, even if the habeas petitioner is still in the actual, physical custody of American authorities?
The writ of habeas corpus “has for centuries functioned as the ‘symbol and guardian of individual liberty’” and is used today in a wide variety of detention cases, including those by the executive branch undertaken as part of the war on terror. While the power of a federal district court to entertain a petition for habeas corpus from an American citizen detained on American soil is firmly established, the question that arises in Munaf v. Geren and Geren v. Omar is whether the same court has the power to hear a habeas petition from a U.S. citizen detained by U.S. authorities acting as part of a multi-national force on foreign soil.
Geren v. Omar
The first decided of these two consolidated cases, Geren v. Omar, involves Shawqi Ahmad Omar, a dual American-Jordanian citizen captured and detained in Iraq in October 2004 by U.S. military forces operating as part of the Multi-National Force-Iraq (“MNF-I”). Omar alleges that he traveled to Iraq in pursuit of reconstruction work following the overthrow of Saddam Hussein’s regime. According to the government, however, Omar was an associate of insurgent Abu Musab al-Zarqawi and helped Zarqawi plan terrorist activities within and outside of Iraq. Found by a military panel to be a security internee and an enemy combatant, Omar remains under control of U.S. forces, allegedly without formal charges and access to counsel. When in August 2005 MNF-I revealed plans to transfer Omar to the Central Criminal Court of Iraq (“CCCI”) for trial, his wife and son filed a petition for habeas corpus in the United States District Court for the District of Columbia, asking that Omar be released and/or brought to the U.S. for trial, and that the military be enjoined from transferring him into the custody of any other government. Eventually the habeas petition and preliminary injunction were granted, preventing Omar’s transfer into Iraqi custody and ensuring the Court’s continued jurisdiction over his claim.
The government challenged the District Court’s exercise of jurisdiction over Omar’s petition, claiming that Hirota v. MacArthur, 338 U.S. 197 (1948) was controlling. In that case, the Supreme Court ruled in a per curiam, nine-sentence opinion that Japanese citizens detained by American officials following their convictions by an Allied Powers military tribunal were not under the jurisdiction of U.S. courts. The Circuit Court for the District of Columbia agreed with the lower court that Hirota was not controlling since at the time of filing his petition, Omar had not been tried or convicted by a non-U.S. tribunal. It found that Omar is squarely within the bounds of the habeas corpus statute since he is an American citizen being detained without trial by military officials acting under the authority of the United States. The government petitioned for and was granted review in the Supreme Court.
Munaf v. Geren
The companion case to Omar, Munaf v. Geren, is similar in factual circumstances, yet a world apart in legal posture. Mohammad Munaf, an American citizen since 2000, was born in Iraq but lived in Romania with his wife from 2001 to 2005. In 2005, he traveled to Iraq with a group of Romanian journalists, acting as their guide and interpreter. That group, along with Munaf, was kidnapped and held captive for two months by a group calling itself the “Muadh Ibn Jabal Brigade.” The government claims that Munaf was part of an elaborate “kidnapping-for-profit” scheme designed to help the mastermind of the plot increase his own stature in Romania by negotiating the release of the journalists. Munaf denies any criminal activity or association with terrorists. Fifteen months after his capture by MNF-I forces, he too filed for a petition for writ of habeas corpus in D.C. District Court. But unlike Omar, he was transferred into Iraqi custody and tried by a judge for the CCCI, and was convicted and sentenced to death for his alleged role in the kidnapping plot. U.S. officials claim they were authorized by the Romanian Embassy to bring charges against Munaf in the Iraqi Court, but proof of this authorization has not been produced. Munaf is currently still being held by U.S. forces acting as part of the MNF-I.
When the D.C. District Court finally issued a decision on Munaf’s habeas petition, it was denied for lack of jurisdiction. On appeal, the Circuit Court found that since Munaf had been tried and convicted by a non-U.S. tribunal administered by Iraq’s government, Hirota prevented hearing his petition. It pointed out that a later case, Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), interpreted Hirota to stand for the rule that the controlling element in determining U.S. jurisdiction over habeas claims filed by overseas petitioners was not their citizenship, but whether or not they had been tried and sentenced by a tribunal operated by an international body. The Court explained that while Omar and Munaf were both U.S. citizens being held by U.S. forces abroad, Omar’s case presented one key difference: he, unlike Munaf, had never been tried and convicted by the CCCI, and thus was still under the jurisdiction of U.S. courts. Since Munaf had already been convicted by a foreign tribunal, the D.C. Circuit held, the District Court was correct in finding that it could not exercise jurisdiction over his case. Munaf has appealed this ruling to the Supreme Court.
Can American citizens, detained abroad by the United States armed forces working as part of a multinational force, bring habeas corpus petitions in federal courts? What if they have already been charged, tried, and convicted in a foreign court? What are the possible repercussions for ignoring the final judgment of a sovereign nation? The cases of Shawqi Ahmad Omar and Mohammed Munaf have presented the Supreme Court with these questions, and the Court’s decision will more clearly define the role of federal courts in the international war on terrorism in the post-9/11 world.
Omar and Munaf argue that federal courts are able to hear their habeas petitions, since the federal habeas statute grants jurisdiction to district courts when petitioners are held under the authority of the United States. Although the habeas petitioners were both detained under the “Multinational Force-Iraq,” they were in the actual, physical custody of the United States Army, which they claim is enough for habeas jurisdiction. The U.S. government, on the other hand, argues that giving federal courts jurisdiction to hear habeas petitions filed by individuals detained by a multi-national force acting under international authority would interfere with a foreign nation’s ability to prosecute criminal conduct on their own soil.
The “great writ” of habeas corpus, an order issued by a court to have a prisoner brought before it in order to determine the legitimacy of his imprisonment, is a “fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” The case of Munaf v. Geren and Geren v. Omar is yet one more in a recent line of cases concerned with habeas petitions brought by detainees in the war on terrorism. In Rasul v. Bush, 542 U.S. 466 (2004), the Supreme Court found that foreign nationals detained at the military base in Guantanamo Bay, Cuba, were entitled to habeas corpus rights. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), decided the same day as Rasul, confirmed that a United States citizen, detained in the U.S. as an enemy combatant, must be given a meaningful opportunity to challenge his detention. Another case involving executive detention during time of war, Hamdan v. Rumsfeld, 548 U.S. 557 (2006), held that the military commissions established by the Bush administration at Guantanamo Bay to try enemy combatants violated both the Third Geneva Convention and the Uniform Code of Military Justice. Most recently, the Supreme Court heard oral arguments from yet another set of Guantanamo detainees in Boumediene v. Bush and Al Odah v. United States, a consolidated case questioning the constitutionality of the Military Commissions Act, which denied non-citizen Guantanamo detainees the right to habeas corpus.
The habeas petitions of Munaf and Omar differ from the above cases because here both petitioners are United States citizens, but they are being detained in a foreign country by the Multinational Force-Iraq, an “internationally authorized entity consisting of military forces from approximately 27 nations.” The Supreme Court’s opinion will clarify whether either their citizenship status or the detention by a multinational force are determinative of federal court jurisdiction to entertain habeas petitions.
The Court’s decision could potentially also have wide-ranging effects on the United States’ international relations. The D.C. Circuit Court found that they had jurisdiction to hear Omar’s habeas petition, but not Munaf’s. In distinguishing these two cases from each other, the court emphasized the fact that Munaf had already been tried and convicted in the Central Criminal Court of Iraq, while Omar had not yet been transferred to Iraqi custody, much less convicted by an Iraqi court. Distinguishing these cases on this ground acknowledges and abides by the foreign court’s conviction. If the Supreme Court determines that U.S. courts should have habeas jurisdiction in both situations, however, this could suggest that a federal judge may have the ability to attack a foreign conviction.
Although the Full Faith and Credit Clause of the U.S. Constitution requires states to respect judicial proceedings of other states, there is no Constitutional requirement that the United States respect judgments of a foreign court. However, general principals of comity do apply in international law; nations voluntarily recognize and respect the laws and judicial decisions of other nations. The Supreme Court has long ago made clear that a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.” If federal courts were given the go-ahead to hear habeas petitions from individuals who had already been tried and convicted in a foreign court for crimes committed in that foreign nation’s territory, the decision in this case could be unprecedented in its “far-reaching and internationally unsettling exercise of American judicial power.”
There are, however, parties who point out that more important than international rules of comity are the rights of American citizens currently in Iraq who daily face the dangers posed by Iraq’s underdeveloped and arguably biased justice system. Human Rights Watch and the Center for Constitutional Rights, along with other non-government organizations, argue that Omar and Munaf face a high risk of torture if they are released into Iraqi custody. The Associated Press and other news organizations claim that the Court must also consider the risk of erroneous detentions of journalists and other professionals in Iraq in deciding whether to the limit the reach of federal habeas corpus jurisdiction there. Additionally, the American Bar Association and international law professors from all over the country argue, respectively, that the Due Process clause and the laws of extradition prevent the transfer of Omar and Munaf into Iraqi custody.
Jurisdiction – Does the Habeas Statute or the Precedent Set in Hirota Control?
The jurisdictional question in this case boils down to whether a functional interpretation of the habeas corpus statute controls, or whether the post-World War II decision in Hirota v. MacArthur, heavily relied upon by the government, limits the District Court’s power to hear the habeas petitions of Omar and Munaf.
Omar and Munaf rely on a functional reading of the habeas statute in claiming that the District Court has the power to hear their cases. Section (c)(1) of the statute reads that “the writ of habeas corpus shall not extend to a prisoner unless…[h]e is in custody under or by color of the authority of the United States or is committed for trial before some court thereof.” Since the ultimate custodian of both Omar and Munaf is the Secretary of the United States Army and they are physically held by U.S. soldiers, they claim that this provision is clearly met. Omar and Munaf also point out that U.S. soldiers acting as part of the Multi-National Force Iraq (“MNF-I”) are not required to report to the United Nations as part of their duties and therefore the U.S. has absolute control over those in its custody. Omar and Munaf additionally allege that they meet the jurisdictional requirements under Section (c)(3) of the habeas statute, which extends habeas relief to prisoners who are “in custody in violation of the Constitution or laws or treaties of the United States” since their continued detention by federal officials, without legal process, violates their fundamental liberty interests.
According to the Government, the Court’s decision in Hirota forecloses the extension of habeas relief to parties being held by forces other than those of the United States, and since the MNF-I is a multinational force, Omar and Munaf fall under Hirota’s precedent. In Hirota, Japanese prisoners convicted and held by Americans acting as part of the Allied Powers in Japan unsuccessfully challenged their detention in the Supreme Court by filing for habeas relief. The short opinion in the case was soon clarified by Flick v. Johnson, where German citizens in an analogous position challenged their imprisonment. In Flick, the D.C. Circuit Court found that the key to the decision in Hirota was the source of power behind the challenged criminal conviction and subsequent detention. In order to qualify for habeas relief, an individual had to have been convicted by a tribunal whose source of power was the United States.
The D.C. Circuit determined that Flick’s applicability was limited to cases in which there has been an actual criminal conviction by a non-U.S. tribunal. Because Omar has not been convicted by such a tribunal, the court found that Flick did not apply to him. Id. The government attempts to minimize the effect of Flick by pointing out that in Hirota, the ultimate decision that the District Court could not exercise jurisdiction was made despite the fact that (1) the prisoners were being physically held by U.S. forces, (2) they had been convicted by a U.S. military officer, and (3) the convicting tribunal’s rulings were subject to alteration by U.S. officers. The government claims that in accordance with Hirota, the fact that all of these elements also are present in the cases of Omar and Munaf should not affect the ruling on lower court jurisdiction in either case.
Omar and Munaf respond that Hirota is not controlling for three main reasons. The first is that the prisoners in Hirota filed habeas petitions directly with the Supreme Court, and that the decision to deny their petitions was based in part on a lack of original jurisdiction there. Second, they point out that the prisoners in Hirota were challenging the creation and workings of the American-led international tribunal under which they had been convicted, while Omar and Munaf are simply challenging their detention by U.S. forces without legal process. Finally, they stress that the prisoners in both Hirota and Flick were not American citizens, as Omar and Munaf are, and that later decisions made clear that citizenship is key to determining the availability of habeas relief from overseas.
Separation of Powers and the Role of the Multinational Force-Iraq
The Government contends that denying the District Court the power to hear habeas petitions from Omar and Munaf is necessary to ensure continued maintenance of the separation of powers between coordinate branches of the government. The Constitution allows the Executive Branch to enter into agreements with other nations regarding the conduct of war. The government argues that it was acting pursuant to this power when it created the MNF-I under UN parameters. If further argues that granting habeas relief in these cases would improperly interfere with Executive Branch commitments and military objectives. Therefore, in its view the Court should respect that action by denying habeas relief. The government also predicts grave consequences if the Court’s decision allows U.S. courts to review decisions of international bodies like the MNF-I, which is comprised of 27 other nations. It contends that finding that Munaf’s conviction by the Criminal Court of Iraq can be reviewed or questioned by a U.S. court would be an affront to Iraqi authority.
Omar and Munaf respond that preventing lower courts from exercising jurisdiction where American citizens are being detained without due process would result in a further violation of the U.S. Constitution, which is proscribed by Section (c)(3) of the habeas statute. They again stress a functional reading of the habeas statute and criticize the government’s formalistic characterization of the role of the MNF-I, which in reality is controlled by U.S. forces. They also claim that accepting the Government’s interpretation of the habeas statute effectively would allow an Executive Branch suspension of the writ of habeas corpus and permit Executive detentions without judicial review or due process. The government’s reliance on the structure of the MNF-I, Omar and Munaf claim, does not free the Executive or any other branch from the constraints on action posed by the Constitution.
Did the District Court Abuse Its Discretion By Issuing An Injunction in Omar’s Case?
The parties are also in disagreement over whether it was appropriate for the District Court to issue a preliminary injunction preventing the transfer of Omar to Iraqi custody and preventing him from being tried before the Iraqi Criminal Court. The argument over the injunction is pertinent to both habeas petitioners, however, since Munaf is currently seeking a similar injunction preventing his transfer into Iraqi custody.
The Government argues that since Iraq has jurisdiction over people within its own borders, including U.S. citizens, U.S. courts should not interfere with this power by preventing the transfer into Iraqi custody of those suspected of committing crimes within its borders. The government cites Wilson v. Girard, 354 U.S. 524 (1957) to support its claim that an injunction improperly interferes with a country’s jurisdiction over criminal matters within their borders. In Wilson v. Girard, a U.S. soldier alleged to have shot a Japanese civilian sought an injunction preventing his transfer to Japanese custody, but the Court ruled that an injunction was improper. The government contends that the case against an injunction is even stronger here, where the habeas petitioners traveled to Iraq on their own rather than being stationed there. It also contends that because of this sovereignty principle, the Executive does not need statutory authority or a specific treaty to transfer Omar and Munaf into Iraqi custody.
Omar and Munaf respond primarily that their detention is unlawful under the Due Process Clause, since there has been no legal testing of the factual assertions underlying the government’s claims against them and there is no statutory authority permitting their transfer. They contend that contrary to the government’s assertion, Wilson actually supports the propriety of an injunction in this situation because the Court in Wilson only overturned the injunction after finding that statutory authority for the transfer existed. They further point out that the Court in Wilson did not find that it was an abuse of discretion for the lower court to freeze the status quo while it resolved the legal issues surrounding the act of transfer before it was physically undertaken. Here, they assert that the jurisdiction of Iraq or any other nation over accused criminals within its borders does not nullify an American citizen’s right to a due process under the law. They argue that under both statutory law and the Due Process Clause of the Constitution, the government is barred from transferring them into the custody of another country when torture is the likely result.
In responding to the issue of whether Munaf and Omar will be tortured if they are transferred, the government relies on rules of international comity and on the common law rule of non-inquiry. Under the rule of non-inquiry, American courts are not to examine other countries’ penal systems as part of adjudicating claims, but are to leave to the Secretary of State the responsibility of making determinations about the likelihood that an American citizen will be treated humanely by another country. The government claims that deviating from this rule will strain the already delicate relationship between the U.S. and Iraq and undermine the efforts the U.S. has undertaken to help Iraq rebuild its governmental institutions.
Omar and Munaf dispute that the rule of non-inquiry applies in all cases. They argue that the Foreign Affairs Reform and Restructuring Act of 1998 provides a judicially enforceable ban on transfers of prisoners when torture is likely. Moreover, they argue, numerous lower courts have recognized that the rule of non-inquiry is not applicable when torture is likely to result from transfer to another country.
The Supreme Court’s decision in Munaf v. Geren and Geren v. Omar will determine whether American citizens detained in the international war on terrorism can bring habeas corpus petitions to federal courts to review their imprisonment by multinational forces. The decision will also clarify issues of international comity by determining whether federal courts can review the detention of an American citizen who has already been tried and convicted by another nation. A decision for the habeas petitioners would possibly grant federal judges the authority to review foreign convictions, whereas a decision for the government will create incentives for the U.S. military to transfer detainees to a tribunal to be tried quickly, in order to deprive federal courts of the jurisdiction to hear their claims. If the Supreme Court affirms the D.C. Circuit Court’s holdings in both cases, the decision will confirm that a pre-existing foreign conviction is the distinguishing factor between the cases of Munaf and Omar.
Edited by: Cecelia Sander Cannon
- Scotuswiki: Munaf v. Geren
- LII Lexicon: Habeas Corpus
- LII Wex: Jurisdiction
- Wikipedia: Multinational Force in Iraq
- Wikipedia: Comity