Munaf v. Geren

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MUNAF ET AL. v. GEREN, SECRETARY OF THE ARMY,

ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 06–1666. Argued March 25, 2008—Decided June 12, 2008*

The Multinational Force–Iraq (MNF–I) is an international coalition

force composed of 26 nations, including the United States. It oper-

ates in Iraq under the unified command of U. S. military officers, at

the Iraqi Government’s request, and in accordance with United Na-

tions Security Council Resolutions. Pursuant to the U. N. mandate,

MNF–I forces detain individuals alleged to have committed hostile or

warlike acts in Iraq, pending investigation and prosecution in Iraqi

courts under Iraqi law.

Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are

American citizens who voluntarily traveled to Iraq and allegedly

committed crimes there. They were each captured by military forces

operating as part of the MNF–I; given hearings before MNF–I Tribu-

nals composed of American officers, who concluded that petitioners

posed threats to Iraq’s security; and placed in the custody of the U. S.

military operating as part of the MNF-I. Family members filed next-

friend habeas corpus petitions on behalf of both petitioners in the

United States District Court for the District of Columbia.

In Omar’s case, after the Department of Justice informed Omar

that the MNF–I had decided to refer him to the Central Criminal

Court of Iraq for criminal proceedings, his attorney sought and ob-

tained a preliminary injunction from the District Court barring

Omar’s removal from United States or MNF-I custody. Affirming,

the D. C. Circuit first upheld the District Court’s exercise of habeas

jurisdiction, finding that Hirota v. MacArthur, 338 U. S. 197, did not

——————

* Together with No. 07–394, Geren, Secretary of the Army, et al. v.

Omar et al., also on certiorari to the same court.

2 MUNAF v. GEREN

Syllabus

preclude review because Omar, unlike the habeas petitioners in Hi-

rota, had yet to be convicted by a foreign tribunal.

Meanwhile, the District Court in Munaf’s case dismissed his ha-

beas petition for lack of jurisdiction. The court concluded that Hirota

controlled and required that the petition be dismissed for lack of ju-

risdiction because the American forces holding Munaf were operating

as part of an international force—the MNF-I. The D. C. Circuit

agreed and affirmed. It distinguished its prior decision in Omar,

which upheld jurisdiction over Omar’s habeas petition, on the

grounds that Munaf had been convicted by a foreign tribunal while

Omar had not.

Held:

1. The habeas statute extends to American citizens held overseas

by American forces operating subject to an American chain of com-

mand. The Government’s argument that the federal courts lack ju-

risdiction over the detainees’ habeas petitions in such circumstances

because the American forces holding Omar and Munaf operate as

part of a multinational force is rejected. The habeas statute, 28

U. S. C. §2241(c)(1), applies to persons held “in custody under or by

color of the authority of the United States.” The disjunctive “or” in

§2241(c)(1) makes clear that actual Government custody suffices for

jurisdiction, even if that custody could be viewed as “under . . . color

of” another authority, such as the MNF–I.

The Court also rejects the Government’s contention that the Dis-

trict Court lacks jurisdiction in these cases because the multinational

character of the MNF–I, like the multinational character of the tri-

bunal at issue in Hirota, means that the MNF-I is not a United

States entity subject to habeas. The present cases differ from Hirota

in several respects. The Court in Hirota may have found it signifi-

cant, in considering the nature of the tribunal established by General

MacArthur, that in that case the Government argued that General

MacArthur was not subject to United States authority, that his duty

was to obey the Far Eastern Commission and not the U. S. War De-

partment, and that no process this Court could issue would have any

effect on his action. Here, in contrast, the Government acknowl-

edges that U. S. military commanders answer to the President.

These cases also differ from Hirota in that they concern American

citizens, and the Court has indicated that habeas jurisdiction can de-

pend on citizenship. See e.g., Johnson v. Eisentrager, 339 U. S. 763,

781. Pp. 7–11.

2. Federal district courts, however, may not exercise their habeas

jurisdiction to enjoin the United States from transferring individuals

alleged to have committed crimes and detained within the territory of

a foreign sovereign to that sovereign for criminal prosecution. Be-

Cite as: 553 U. S. ____ (2008) 3

Syllabus

cause petitioners state no claim in their habeas petitions for which

relief can be granted, their habeas petitions should have been

promptly dismissed, and no injunction should have been entered.

Pp. 11–28.

(a) The District Court abused its discretion in granting Omar a

preliminary injunction, which the D. C. Circuit interpreted as prohib-

iting the Government from (1) transferring Omar to Iraqi custody, (2)

sharing with the Iraqi Government details concerning any decision to

release him, and (3) presenting him to the Iraqi courts for investiga-

tion and prosecution, without even considering the merits of the ha-

beas petition. A preliminary injunction is an “extraordinary and

drastic remedy.” It should never be awarded as of right, Yakus v.

United States, 321 U. S. 414, 440, and requires a demonstration of,

inter alia, “a likelihood of success on the merits,” Gonzales v. O

Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 428.

But neither the District Court nor the D. C. Circuit considered the

likelihood of success as to the merits of Omar’s habeas petition. In-

stead, the lower courts concluded that the “jurisdictional issues” im-

plicated by Omar’s petition presented difficult and substantial ques-

tions. A difficult question as to jurisdiction is, of course, no reason to

grant a preliminary injunction.

The foregoing analysis would require reversal and remand in each

of these cases: The lower courts in Munaf erred in dismissing for

want of jurisdiction, and the lower courts in Omar erred in issuing

and upholding the preliminary injunction. Our review of a prelimi-

nary injunction, however, “is not confined to the act of granting the

injunctio[n].” City and County of Denver v. New York Trust Co., 229

U. S. 123, 136. Rather, a reviewing court has the power on appeal

from an interlocutory order “to examine the merits of the case . . . and

upon deciding them in favor of the defendant to dismiss the bill.”

North Carolina R. Co. v. Story, 268 U. S. 288, 292. In short, there are

occasions when it is appropriate for a court reviewing a preliminary

injunction to proceed to the merits; given that the present cases im-

plicate sensitive foreign policy issues in the context of ongoing mili-

tary operations, this is one of them. Pp. 11–14.

(b) Petitioners argue that they are entitled to habeas relief be-

cause they have a legally enforceable right not to be transferred to

Iraqi authorities for criminal proceedings and because they are inno-

cent civilians unlawfully detained by the Government. With respect

to the transfer claim, they request an injunction prohibiting the Gov-

ernment from transferring them to Iraqi custody. With respect to the

unlawful detention claim, they seek release but only to the extent it

would not result in unlawful transfer to Iraqi custody. Because both

requests would interfere with Iraq’s sovereign right to “punish of-

4 MUNAF v. GEREN

Syllabus

fenses against its laws committed within its borders,” Wilson v. Gi­

rard, 354 U. S. 524, 529, petitioners’ claims do not state grounds

upon which habeas relief may be granted. Their habeas petitions

should have been promptly dismissed and no injunction should have

been entered. Pp. 14–28.

(1) Habeas is governed by equitable principles. Thus, pruden-

tial concerns may “require a federal court to forgo the exercise of its

habeas . . . power.” Francis v. Henderson, 425 U. S. 536, 539. Here,

the unusual nature of the relief sought by petitioners suggests that

habeas is not appropriate. Habeas is at its core a remedy for unlaw-

ful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536. The

typical remedy is, of course, release. See, e.g., Preiser v. Rodriguez,

411 U. S. 475, 484. But the habeas petitioners in these cases do not

want simple release; that would expose them to apprehension by

Iraqi authorities for criminal prosecution—precisely what they went

to federal court to avoid.

The habeas petitioners do not dispute that they voluntarily trav-

eled to Iraq, that they remain detained within the sovereign territory

of Iraq today, or that they are alleged to have committed serious

crimes in Iraq. Indeed, Omar and Munaf both concede that, if they

were not in MNF–I custody, Iraq would be free to arrest and prose-

cute them under Iraqi law. Further, Munaf is the subject of ongoing

Iraqi criminal proceedings and Omar would be but for the present in-

junction. Given these facts, Iraq has a sovereign right to prosecute

them for crimes committed on its soil, even if its criminal process

does not come with all the rights guaranteed by the Constitution, see

Neely v. Henkel, 180 U. S. 109, 123. As Chief Justice Marshall ex-

plained nearly two centuries ago, “[t]he jurisdiction of the nation

within its own territory is necessarily exclusive and absolute.”

Schooner Exchange v. McFaddon, 7 Cranch 116, 136.

This Court has twice applied that principle in rejecting claims that

the Constitution precludes the Executive from transferring a prisoner

to a foreign country for prosecution in an allegedly unconstitutional

trial. Wilson, supra, at 529–530; Neely, supra, at 112–113, 122.

Omar and Munaf concede that Iraq has a sovereign right to prosecute

them for alleged violations of its law. Yet they went to federal court

seeking an order that would allow them to defeat precisely that sov-

ereign authority. But habeas corpus does not bar the United States

from transferring a prisoner to the sovereign authority he concedes

has a right to prosecute him. Petitioners’ “release” claim adds noth-

ing to their “transfer” claim and fails for the same reasons, given that

the release they seek is release that would avoid transfer.

There is of course even more at issue here: Neely involved a charge

of embezzlement and Wilson the peacetime actions of a serviceman.

Cite as: 553 U. S. ____ (2008) 5

Syllabus

The present cases concern individuals captured and detained within

an ally’s territory during ongoing hostilities involving our troops. It

would be very odd to hold that the Executive can transfer individuals

such as those in the Neely and Wilson cases, but cannot transfer to an

ally detainees captured by our Armed Forces for engaging in serious

hostile acts against that ally in what the Government refers to as “an

active theater of combat.” Pp. 15–23.

(2) Petitioners’ allegations that their transfer to Iraqi custody

is likely to result in torture are a matter of serious concern but those

allegations generally must be addressed by the political branches, not

the judiciary. The recognition that it is for the democratically elected

branches to assess practices in foreign countries and to determine na-

tional policy in light of those assessments is nothing new. As Chief

Justice Marshall explained in the Schooner Exchange, “exemptions

from territorial jurisdiction . . . must be derived from the consent of

the sovereign of the territory” and are “rather questions of policy

than of law, . . . they are for diplomatic, rather than legal discussion.”

7 Cranch, at 143, 146. In the present cases, the Government explains

that it is the policy of the United States not to transfer an individual

in circumstances where torture is likely to result and that the State

Department has determined that the Justice Ministry—the depart-

ment which has authority over Munaf and Omar—as well as its

prison and detention facilities, have generally met internationally ac-

cepted standards for basic prisoner needs. The judiciary is not suited

to second-guess such determinations. Pp. 23–26.

(3) Petitioners’ argument that, under Valentine v. United

States ex rel. Neidecker, 299 U. S. 5, the Executive lacks discretion to

transfer a citizen to Iraqi custody unless “legal authority” to do so “is

given by act of Congress or by the terms of a treaty,” id., at 9, is re-

jected. Valentine was an extradition case; the present cases involve

the transfer to a sovereign’s authority of an individual captured and

already detained in that sovereign’s territory. Wilson, supra, also

forecloses petitioners’ contention. A Status of Forces Agreement

there seemed to give the habeas petitioner a right to trial by an

American military tribunal, rather than a Japanese court, 354 U. S.,

at 529, but this Court found no “constitutional or statutory” impedi-

ment to the Government’s waiver of its jurisdiction in light of Japan’s

sovereign interest in prosecuting crimes committed within its bor-

ders, id., at 530. Pp. 26–28.

No. 06–1666, 482 F. 3d 582; No. 07–394, 479 F. 3d 1, vacated and

remanded.

ROBERTS, C. J., delivered the opinion for a unanimous Court.

SOUTER, J., filed a concurring opinion, in which GINSBURG and BREYER,

JJ., joined.

Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–1666 and 07–394

_________________

MOHAMMAD MUNAF, ET AL., PETITIONERS

06–1666 v.

PETE GEREN, SECRETARY OF THE

ARMY, ET AL.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.,

PETITIONERS

07–394 v.

SANDRA K. OMAR AND AHMED S. OMAR, AS

NEXT FRIENDS OF SHAWQI AHMAD OMAR

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[June 12, 2008]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

The Multinational Force–Iraq (MNF–I) is an interna­

tional coalition force operating in Iraq composed of 26

different nations, including the United States. The force

operates under the unified command of United States

military officers, at the request of the Iraqi Government,

and in accordance with United Nations (U. N.) Security

Council Resolutions. Pursuant to the U. N. mandate,

MNF–I forces detain individuals alleged to have commit­

ted hostile or warlike acts in Iraq, pending investigation

and prosecution in Iraqi courts under Iraqi law.

These consolidated cases concern the availability of

2 MUNAF v. GEREN

Opinion of the Court

habeas corpus relief arising from the MNF–I’s detention of

American citizens who voluntarily traveled to Iraq and are

alleged to have committed crimes there. We are con­

fronted with two questions. First, do United States courts

have jurisdiction over habeas corpus petitions filed on

behalf of American citizens challenging their detention in

Iraq by the MNF–I? Second, if such jurisdiction exists,

may district courts exercise that jurisdiction to enjoin the

MNF–I from transferring such individuals to Iraqi custody

or allowing them to be tried before Iraqi courts?

We conclude that the habeas statute extends to Ameri­

can citizens held overseas by American forces operating

subject to an American chain of command, even when

those forces are acting as part of a multinational coalition.

Under circumstances such as those presented here, how­

ever, habeas corpus provides petitioners with no relief.

I

Pursuant to its U. N. mandate, the MNF–I has “ ‘the

authority to take all necessary measures to contribute to

the maintenance of security and stability in Iraq.’ ” App. G

to Pet. for Cert. in 07–394, p. 74a, ¶10 (quoting U. N.

Security Council, U. N. Doc. S/Res/1546, ¶10 (June 2004)).

To this end, the MNF–I engages in a variety of military

and humanitarian activities. The multinational force, for

example, conducts combat operations against insurgent

factions, trains and equips Iraqi security forces, and aids

in relief and reconstruction efforts.

MNF–I forces also detain individuals who pose a threat

to the security of Iraq. The Government of Iraq retains

ultimate responsibility for the arrest and imprisonment of

individuals who violate its laws, but because many of

Iraq’s prison facilities have been destroyed, the MNF–I

agreed to maintain physical custody of many such indi­

viduals during Iraqi criminal proceedings. MNF–I forces

are currently holding approximately 24,000 detainees. An

Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

American military unit, Task Force 134, oversees deten­

tion operations and facilities in Iraq, including those

located at Camp Cropper, the detention facility currently

housing Shawqi Omar and Mohammad Munaf (herein-

after petitioners). The unit is under the command of

United States military officers who report to General

David Petraeus.

A

Petitioner Shawqi Omar, an American-Jordanian citi­

zen, voluntarily traveled to Iraq in 2002. In October 2004,

Omar was captured and detained in Iraq by U. S. military

forces operating as part of the MNF–I during a raid of his

Baghdad home. Omar is believed to have provided aid to

Abu Musab al-Zarqawi—the late leader of al Qaeda in

Iraq—by facilitating his group’s connection with other

terrorist groups, bringing foreign fighters into Iraq, and

planning and executing kidnappings in Iraq. MNF–I

searched his home in an effort to capture and detain in­

surgents who were associated with al-Zarqawi. The raid

netted an Iraqi insurgent and four Jordanian fighters

along with explosive devices and other weapons.

The captured insurgents gave sworn statements impli­

cating Omar in insurgent cell activities. The four Jorda­

nians testified that they had traveled to Iraq with Omar to

commit militant acts against American and other Coali­

tion Forces. Each of the insurgents stated that, while

living in Omar’s home, they had surveilled potential kid­

nap victims and conducted weapons training. The insur­

gents explained that Omar’s fluency in English allowed

him to lure foreigners to his home in order to kidnap and

sell them for ransom.

Following Omar’s arrest, a three-member MNF–I Tri­

bunal composed of American military officers concluded

that Omar posed a threat to the security of Iraq and des­

ignated him a “security internee.” The tribunal also found

that Omar had committed hostile and warlike acts, and

4 MUNAF v. GEREN

Opinion of the Court

that he was an enemy combatant in the war on terrorism.

In accordance with Article 5 of the Geneva Convention,

Omar was permitted to hear the basis for his deten-

tion, make a statement, and call immediately available

witnesses.

In addition to the review of his detention by the MNF–I

Tribunal, Omar received a hearing before the Combined

Review and Release Board (CRRB)—a nine-member board

composed of six representatives of the Iraqi Government

and three MNF–I officers. The CRRB, like the MNF–I

Tribunal, concluded that Omar’s continued detention was

necessary because he posed a threat to Iraqi security. At

all times since his capture, Omar has remained in the

custody of the United States military operating as part of

the MNF–I.

Omar’s wife and son filed a next-friend petition for a

writ of habeas corpus on Omar’s behalf in the District

Court for the District of Columbia. Omar v. Harvey, 479

F. 3d 1, 4 (CADC 2007). After the Department of Justice

informed Omar that the MNF–I had decided to refer him

to the Central Criminal Court of Iraq (CCCI) for criminal

proceedings, his attorney sought and obtained a prelimi­

nary injunction barring Omar’s “remov[al] . . . from United

States or MNF-I custody.” App. to Pet. in No. 07–394,

supra, at 59a. The order directed that

“the [United States], their agents, servants, employ­

ees, confederates, and any persons acting in concert or

participation with them, or having actual or implicit

knowledge of this Order . . . shall not remove [Omar]

from United States or MNF-I custody, or take any

other action inconsistent with this court’s memoran­

dum opinion.” Ibid.

The United States appealed and the Court of Appeals

for the District of Columbia Circuit affirmed. Omar, 479

F. 3d 1. The Court of Appeals first upheld the District

Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

Court’s exercise of habeas jurisdiction, finding that this

Court’s decision in Hirota v. MacArthur, 338 U. S. 197

(1948) (per curiam), did not preclude review. The Court of

Appeals distinguished Hirota on the ground that Omar,

unlike the petitioner in that case, had yet to be convicted

by a foreign tribunal. 479 F. 3d, at 7–9. The Court of

Appeals recognized, however, that the writ of habeas

corpus could not be used to enjoin release. Id., at 11. It

therefore construed the injunction only to bar transfer to

Iraqi custody and upheld the District Court’s order insofar

as it prohibited the United States from: (1) transferring

Omar to Iraqi custody, id., at 11–13; (2) sharing details

concerning any decision to release Omar with the Iraqi

Government, id., at 13; and (3) presenting Omar to the

Iraqi Courts for investigation and prosecution, id., at 14.

Judge Brown dissented. She joined the panel’s jurisdic­

tional ruling, but would have vacated the injunction be­

cause, in her view, the District Court had no authority to

enjoin a transfer that would allow Iraqi officials to take

custody of an individual captured in Iraq—something the

Iraqi Government “undeniably h[ad] a right to do.” Id., at

19. We granted certiorari. 552 U. S. ___ (2007).

B

Petitioner Munaf, a citizen of both Iraq and the United

States, voluntarily traveled to Iraq with several Romanian

journalists. He was to serve as the journalists’ translator

and guide. Shortly after arriving in Iraq, the group

was kidnapped and held captive for two months. After

the journalists were freed, MNF–I forces detained

Munaf based on their belief that he had orchestrated the

kidnappings.

A three-judge MNF–I Tribunal conducted a hearing to

determine whether Munaf’s detention was warranted.

The MNF–I Tribunal reviewed the facts surrounding

Munaf’s capture, interviewed witnesses, and considered

6 MUNAF v. GEREN

Opinion of the Court

the available intelligence information. Munaf was present

at the hearing and had an opportunity to hear the grounds

for his detention, make a statement, and call immediately

available witnesses. At the end of the hearing, the tribu­

nal found that Munaf posed a serious threat to Iraqi secu­

rity, designated him a “security internee,” and referred

his case to the CCCI for criminal investigation and

prosecution.

During his CCCI trial, Munaf admitted on camera and

in writing that he had facilitated the kidnapping of the

Romanian journalists. He also appeared as a witness

against his alleged co-conspirators. Later in the proceed­

ings, Munaf recanted his confession, but the CCCI none­

theless found him guilty of kidnapping. On appeal, the

Iraqi Court of Cassation vacated Munaf’s conviction and

remanded his case to the CCCI for further investigation.

In re Hikmat, No. 19/Pub. Comm’n/2007, p. 5 (Feb. 19,

2008). The Court of Cassation directed that Munaf was to

“remain in custody pending the outcome” of further crimi­

nal proceedings. Ibid.

Meanwhile, Munaf ’s sister filed a next-friend petition

for a writ of habeas corpus in the District Court for the

District of Columbia. Mohammed v. Harvey, 456 F. Supp.

2d 115, 118 (2006). The District Court dismissed the

petition for lack of jurisdiction, finding that this Court’s

decision in Hirota controlled: Munaf was “in the custody of

coalition troops operating under the aegis of MNF–I, who

derive their ultimate authority from the United Nations

and the MNF-I member nations acting jointly.” 456

F. Supp. 2d, at 122.

The Court of Appeals for the District of Columbia Cir­

cuit affirmed. 482 F. 3d 582 (2007) (hereinafter Muraf).

The Court of Appeals, “[c]onstrained by precedent,” agreed

with the District Court that Hirota controlled and dis­

missed Munaf’s petition for lack of jurisdiction. 482 F. 3d,

at 583. It distinguished the prior opinion in Omar on the

Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

ground that Munaf, like the habeas petitioner in Hirota

but unlike Omar, had been convicted by a foreign tribunal.

482 F. 3d, at 583–584.

Judge Randolph concurred in the judgment. Id., at 585.

He concluded that the District Court had improperly

dismissed for want of jurisdiction because “Munaf is an

American citizen . . . held by American forces overseas.”

Ibid. Nevertheless, Judge Randolph would have held that

Munaf’s habeas petition failed on the merits. Id., at 586.

He relied on this Court’s holding in Wilson v. Girard, 354

U. S. 524, 529 (1957), that a “sovereign nation has exclu­

sive jurisdiction to punish offenses against its laws com­

mitted within its borders,” and concluded that the fact

that the United States was holding Munaf because of his

conviction by a foreign tribunal was conclusive. Ibid.1

We granted certiorari and consolidated the Omar and

Munaf cases. 552 U. S. ___ (2007).

II

The Solicitor General argues that the federal courts lack

jurisdiction over the detainees’ habeas petitions because

the American forces holding Omar and Munaf operate as

part of a multinational force. Brief for Federal Parties 17–

36. The habeas statute provides that a federal district

court may entertain a habeas application by a person held

“in custody under or by color of the authority of the United

States,” or “in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U. S. C.

§§2241(c)(1), (3). MNF–I forces, the argument goes, “are

not operating solely under United States authority, but

rather ‘as the agent of’ a multinational force.” Brief for

Federal Parties 23 (quoting Hirota, supra, at 198). Omar

and Munaf are thus held pursuant to international au­

——————

1 As noted above, Munaf’s conviction was subsequently vacated by an

Iraqi appellate court, and he is awaiting a new trial.

8 MUNAF v. GEREN

Opinion of the Court

thority, not “the authority of the United States,”

§2241(c)(1), and they are therefore not within the reach of

the habeas statute. Brief for Federal Parties 17–18.2

The United States acknowledges that Omar and Munaf

are American citizens held overseas in the immediate

“ ‘physical custody’ ” of American soldiers who answer only

to an American chain of command. Id., at 21. The MNF–I

itself operates subject to a unified American command.

Id., at 23. “[A]s a practical matter,” the Government

concedes, it is “the President and the Pentagon, the Secre­

tary of Defense, and the American commanders that con­

trol what . . . American soldiers do,” Tr. of Oral Arg. 15,

including the soldiers holding Munaf and Omar. In light

of these admissions, it is unsurprising that the United

States has never argued that it lacks the authority to

release Munaf or Omar, or that it requires the consent of

other countries to do so.

We think these concessions the end of the jurisdictional

inquiry. The Government’s argument—that the federal

courts have no jurisdiction over American citizens held by

American forces operating as multinational agents—is not

easily reconciled with the text of §2241(c)(1). See Duncan

v. Walker, 533 U. S. 167, 172 (2001) (“We begin, as always,

with the language of the statute”). That section applies to

persons held “in custody under or by color of the authority

of the United States.” §2241(c)(1). An individual is held

“in custody” by the United States when the United States

official charged with his detention has “the power to pro­

duce” him. Wales v. Whitney, 114 U. S. 564, 574 (1885);

see also §2243 (“The writ . . . shall be directed to the per­

son having custody of the person detained”). The disjunc­

tive “or” in §2241(c)(1) makes clear that actual custody by

——————

2 These cases concern only American citizens and only the statutory

reach of the writ. Nothing herein addresses jurisdiction with respect to

alien petitioners or with respect to the constitutional scope of the writ.

Cite as: 553 U. S. ____ (2008) 9

Opinion of the Court

the United States suffices for jurisdiction, even if that

custody could be viewed as “under . . . color of” another

authority, such as the MNF–I.

The Government’s primary contention is that the Dis­

trict Courts lack jurisdiction in these cases because of this

Court’s decision in Hirota. That slip of a case cannot bear

the weight the Government would place on it. In Hirota,

Japanese citizens sought permission to file habeas corpus

applications directly in this Court. The petitioners were

noncitizens detained in Japan. They had been convicted

and sentenced by the International Military Tribunal for

the Far East—an international tribunal established by

General Douglas MacArthur acting, as the Court put it, in

his capacity as “the agent of the Allied Powers.” 338 U. S.,

at 198. Although those familiar with the history of the

period would appreciate the possibility of confusion over

who General MacArthur took orders from, the Court con­

cluded that the sentencing tribunal was “not a tribunal of

the United States.” Ibid. The Court then held that,

“[u]nder the foregoing circumstances,” United States

courts had “no power or authority to review, to affirm, set

aside or annul the judgments and sentences” imposed by

that tribunal. Ibid. Accordingly, the Court denied peti­

tioners leave to file their habeas corpus applications,

without further legal analysis. Ibid.

The Government argues that the multinational charac­

ter of the MNF–I, like the multinational character of the

tribunal at issue in Hirota, means that it too is not a

United States entity subject to habeas. Reply Brief for

Federal Parties 5–7. In making this claim, the Govern­

ment acknowledges that the MNF–I is subject to American

authority, but contends that the same was true of the

tribunal at issue in Hirota. In Hirota, the Government

notes, the petitioners were held by the United States

Eighth Army, which took orders from General MacArthur,

338 U. S., at 199 (Douglas, J., concurring), and were sub­

10 MUNAF v. GEREN

Opinion of the Court

ject to an “unbroken” chain of U. S. command, ending with

the President of the United States, id., at 207.

The Court in Hirota, however, may have found it signifi­

cant, in considering the nature of the tribunal established

by General MacArthur, that the Solicitor General ex­

pressly contended that General MacArthur, as pertinent,

was not subject to United States authority. The facts

suggesting that the tribunal in Hirota was subject to an

“unbroken” United States chain of command were not

among the “foregoing circumstances” cited in the per

curiam opinion disposing of the case, id., at 198. They

were highlighted only in Justice Douglas’s belated opinion

concurring in the result, published five months after that

per curiam. Id., at 199, n.*. Indeed, arguing before this

Court, Solicitor General Perlman stated that General

MacArthur did not serve “under the Joint Chiefs of Staff,”

that his duty was “to obey the directives of the Far East­

ern Commission and not our War Department,” and that

“no process that could be issued from this court . . . would

have any effect on his action.” Tr. of Oral Arg. in Hirota v.

MacArthur, O. T. 1948, No. 239, pp. 42, 50, 51. Here, in

contrast, the Government acknowledges that our military

commanders do answer to the President.

Even if the Government is correct that the international

authority at issue in Hirota is no different from the inter­

national authority at issue here, the present “circum­

stances” differ in another respect. These cases concern

American citizens while Hirota did not, and the Court has

indicated that habeas jurisdiction can depend on citizen­

ship. See Johnson v. Eisentrager, 339 U. S. 763, 781

(1950); Rasul v. Bush, 542 U. S. 466, 486 (2004)

(KENNEDY, J., concurring in judgment). See also Munaf,

482 F. 3d, at 584 (“[W]e do not mean to suggest that we

find the logic of Hirota especially clear or compelling,

particularly as applied to American citizens”); id., at 585

Cite as: 553 U. S. ____ (2008) 11

Opinion of the Court

(Randolph, J., concurring in judgment).3 “Under the fore­

going circumstances,” we decline to extend our holding in

Hirota to preclude American citizens held overseas by

American soldiers subject to a United States chain of

command from filing habeas petitions.

III

We now turn to the question whether United States

district courts may exercise their habeas jurisdiction to

enjoin our Armed Forces from transferring individuals

detained within another sovereign’s territory to that sov­

ereign’s government for criminal prosecution. The nature

of that question requires us to proceed “with the circum­

spection appropriate when this Court is adjudicating

issues inevitably entangled in the conduct of our interna­

tional relations.” Romero v. International Terminal Oper­

ating Co., 358 U. S. 354, 383 (1959). Here there is the

further consideration that those issues arise in the context

of ongoing military operations conducted by American

Forces overseas. We therefore approach these questions

cognizant that “courts traditionally have been reluctant to

intrude upon the authority of the Executive in military

and national security affairs.” Department of Navy v.

Egan, 484 U. S. 518, 530 (1988).

In Omar, the District Court granted and the D. C. Cir­

cuit upheld a preliminary injunction that, as interpreted

by the Court of Appeals, prohibited the United States from

——————

3 The circumstances in Hirota differ in yet another respect. The peti­

tioners in that case sought an original writ, filing their motions for

leave to file habeas petitions “in this Court.” 338 U. S., at 198. There

is, however, some authority for the proposition that this Court has

original subject-matter jurisdiction only over “ ‘cases affecting ambas­

sadors, other public ministers and consuls, and those in which a state

shall be a party,’ ” Marbury v. Madison, 1 Cranch 137, 174 (1803)

(quoting U. S. Const., Art. III, §2, cl. 2), and Congress had not granted

the Court appellate jurisdiction to review decisions of the International

Military Tribunal for the Far East.

12 MUNAF v. GEREN

Opinion of the Court

(1) effectuating “Omar’s transfer in any form, whether by

an official handoff or otherwise,” to Iraqi custody, 479

F. 3d, at 12; (2) sharing details concerning any decision to

release Omar with the Iraqi Government, id., at 13; and

(3) “presenting Omar to the [Iraqi courts] for trial,” id., at

14. This is not a narrow injunction. Even the habeas

petitioners do not defend it in its entirety. They acknowl­

edge the authority of the Iraqi courts to begin criminal

proceedings against Omar and wisely concede that any

injunction “clearly need not include a bar on ‘information-

sharing.’ ” Brief for Habeas Petitioners 61. As Judge

Brown noted in her dissent, such a bar would impermissi­

bly “enjoin the United States military from sharing infor­

mation with an allied foreign sovereign in a war zone.”

Omar, supra, at 18.

We begin with the basics. A preliminary injunction is

an “extraordinary and drastic remedy,” 11A C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure §2948,

p. 129 (2d ed. 1995) (hereinafter Wright & Miller) (foot­

notes omitted); it is never awarded as of right, Yakus v.

United States, 321 U. S. 414, 440 (1944). Rather, a party

seeking a preliminary injunction must demonstrate,

among other things, “a likelihood of success on the merits.”

Gonzales v. O Centro Espírita Beneficente União do Vege­

tal, 546 U. S. 418, 428 (2006) (citing Mazurek v. Arm­

strong, 520 U. S. 968, 972 (1997) (per curiam); Doran v.

Salem Inn, Inc., 422 U. S. 922, 931 (1975)). But one

searches the opinions below in vain for any mention of a

likelihood of success as to the merits of Omar’s habeas

petition. Instead, the District Court concluded that the

“jurisdictional issues” presented questions “so serious,

substantial, difficult and doubtful, as to make them fair

ground for litigation and thus for more deliberative inves­

tigation.” Omar v. Harvey, 416 F. Supp. 2d 19, 23–24, 27

(DC 2006) (internal quotation marks omitted; emphasis

added).

Cite as: 553 U. S. ____ (2008) 13

Opinion of the Court

The D. C. Circuit made the same mistake. In that

court’s view, the “only question before [it] at th[at] stage of

the litigation relate[d] to the district court’s jurisdiction.”

479 F. 3d, at 11. As a result, the Court of Appeals held

that it “need not address” the merits of Omar’s habeas

claims: those merits had “no relevance.” Ibid.

A difficult question as to jurisdiction is, of course, no

reason to grant a preliminary injunction. It says nothing

about the “likelihood of success on the merits,” other than

making such success more unlikely due to potential im­

pediments to even reaching the merits. Indeed, if all a

“likelihood of success on the merits” meant was that the

district court likely had jurisdiction, then preliminary

injunctions would be the rule, not the exception. In light

of these basic principles, we hold that it was an abuse of

discretion for the District Court to grant a preliminary

injunction on the view that the “jurisdictional issues” in

Omar’s case were tough, without even considering the

merits of the underlying habeas petition.

What we have said thus far would require reversal and

remand in each of these cases: The lower courts in Munaf

erred in dismissing for want of jurisdiction, and the lower

courts in Omar erred in issuing and upholding the pre­

liminary injunction. There are occasions, however, when

it is appropriate to proceed further and address the mer­

its. This is one of them.

Our authority to address the merits of the habeas peti­

tioners’ claims is clear. Review of a preliminary injunction

“is not confined to the act of granting the injunctio[n], but

extends as well to determining whether there is any insu­

perable objection, in point of jurisdiction or merits, to the

maintenance of [the] bill, and, if so, to directing a final

decree dismissing it.” City and County of Denver v. New

York Trust Co., 229 U. S. 123, 136 (1913). See also Deckert

v. Independence Shares Corp., 311 U. S. 282, 287 (1940)

(“ ‘If insuperable objection to maintaining the bill clearly

14 MUNAF v. GEREN

Opinion of the Court

appears, it may be dismissed and the litigation termi­

nated’ ” (quoting Meccano, Ltd. v. John Wanamaker, N. Y.,

253 U. S. 136, 141 (1920))). This has long been the rule:

“By the ordinary practice in equity as administered in

England and this country,” a reviewing court has the

power on appeal from an interlocutory order “to examine

the merits of the case . . . and upon deciding them in favor

of the defendant to dismiss the bill.” North Carolina R.

Co. v. Story, 268 U. S. 288, 292 (1925). Indeed, “[t]he

question whether an action should be dismissed for failure

to state a claim is one of the most common issues that may

be reviewed on appeal from an interlocutory injunction

order.” 16 Wright & Miller, Jurisdiction and Related

Matters, §3921.1, at 32 (2d ed. 1996).

Adjudication of the merits is most appropriate if the

injunction rests on a question of law and it is plain that

the plaintiff cannot prevail. In such cases, the defendant

is entitled to judgment. See, e.g., Deckert, supra, at 287;

North Carolina R. Co., supra, at 292; City and County of

Denver, supra, at 136.

Given that the present cases involve habeas petitions

that implicate sensitive foreign policy issues in the context

of ongoing military operations, reaching the merits is the

wisest course. See Youngstown Sheet & Tube Co. v. Saw­

yer, 343 U. S. 579, 584–585 (1952) (finding the case ripe

for merits review on appeal from stay of preliminary in­

junction). For the reasons we explain below, the relief

sought by the habeas petitioners makes clear under our

precedents that the power of the writ ought not to be

exercised. Because the Government is entitled to judg­

ment as a matter of law, it is appropriate for us to termi­

nate the litigation now.

IV

The habeas petitioners argue that the writ should be

granted in their cases because they have “a legally en­

Cite as: 553 U. S. ____ (2008) 15

Opinion of the Court

forceable right” not to be transferred to Iraqi authority for

criminal proceedings under both the Due Process Clause

and the Foreign Affairs Reform and Restructuring Act of

1998 (FARR Act), div. G, 112 Stat. 2681–761, and because

they are innocent civilians who have been unlawfully

detained by the United States in violation of the Due

Process Clause. Brief for Habeas Petitioners 48–52. With

respect to the transfer claim, petitioners request an in­

junction prohibiting the United States from transferring

them to Iraqi custody. With respect to the unlawful deten­

tion claim, petitioners seek “release”—but only to the

extent that release would not result in “unlawful” transfer

to Iraqi custody. Tr. of Oral Arg. 48. Both of these re­

quests would interfere with Iraq’s sovereign right to “pun­

ish offenses against its laws committed within its bor­

ders.” Wilson, 354 U. S., at 529. We accordingly hold that

the detainees’ claims do not state grounds upon which

habeas relief may be granted, that the habeas petitions

should have been promptly dismissed, and that no injunc­

tion should have been entered.

A

Habeas corpus is “governed by equitable principles.” Fay

v. Noia, 372 U. S. 391, 438 (1963). We have therefore

recognized that “prudential concerns,” Withrow v. Wil­

liams, 507 U. S. 680, 686 (1993), such as comity and the

orderly administration of criminal justice, may “require a

federal court to forgo the exercise of its habeas corpus

power,” Francis v. Henderson, 425 U. S. 536, 539 (1976).

The principle that a habeas court is “not bound in every

case” to issue the writ, Ex parte Royall, 117 U. S. 241, 251

(1886), follows from the precatory language of the habeas

statute, and from its common-law origins. The habeas

statute provides only that a writ of habeas corpus “may be

granted,” §2241(a) (emphasis added), and directs federal

courts to “dispose of [habeas petitions] as law and justice

16 MUNAF v. GEREN

Opinion of the Court

require,” §2243. See Danforth v. Minnesota, 552 U. S. ___,

___ (2008) (slip op., at 13–14). Likewise, the writ did not

issue in England “as of mere course,” but rather required

the petitioner to demonstrate why the “extraordinary

power of the crown” should be exercised, 3 W. Blackstone,

Commentaries on the Laws of England 132 (1768); even

then, courts were directed to “do as to justice shall apper­

tain,” 1 id., at 131 (1765). The question, therefore, even

where a habeas court has the power to issue the writ, is

“whether this be a case in which [that power] ought to be

exercised.” Ex parte Watkins, 3 Pet. 193, 201 (1830) (Mar­

shall, C. J.).

At the outset, the nature of the relief sought by the

habeas petitioners suggests that habeas is not appropriate

in these cases. Habeas is at its core a remedy for unlawful

executive detention. Hamdi v. Rumsfeld, 542 U. S. 507,

536 (2004) (plurality opinion). The typical remedy for

such detention is, of course, release. See, e.g., Preiser v.

Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he traditional

function of the writ is to secure release from illegal cus­

tody”). But here the last thing petitioners want is simple

release; that would expose them to apprehension by Iraqi

authorities for criminal prosecution—precisely what peti­

tioners went to federal court to avoid. At the end of the

day, what petitioners are really after is a court order

requiring the United States to shelter them from the

sovereign government seeking to have them answer for

alleged crimes committed within that sovereign’s borders.

The habeas petitioners do not dispute that they volun­

tarily traveled to Iraq, that they remain detained within

the sovereign territory of Iraq today, or that they are

alleged to have committed serious crimes in Iraq. Indeed,

Omar and Munaf both concede that, if they were not in

MNF–I custody, Iraq would be free to arrest and prosecute

them under Iraqi law. See Tr. in Omar, No. 06–5126

(CADC), pp. 48–49, 59 (Sept. 11, 2006); Tr. in Mohammed,

Cite as: 553 U. S. ____ (2008) 17

Opinion of the Court

No. 06–1455 (DC), pp. 15–16 (Oct. 10, 2006). There is,

moreover, no question that Munaf is the subject of ongoing

Iraqi criminal proceedings and that Omar would be but for

the present injunction. Munaf was convicted by the CCCI,

and while that conviction was overturned on appeal, his

case was remanded to and is again pending before the

CCCI. The MNF–I referred Omar to the CCCI for prose­

cution at which point he sought and obtained an injunc­

tion that prohibits his prosecution. See 479 F. 3d, at 16,

n. 3 (Brown, J., dissenting in part) (“ ‘[Omar] has not yet

had a trial or even an investigative hearing in the CCCI

due to the district court’s unprecedented injunction’ ”

(citing Opposition to Petitioner’s Emergency Motion for

Injunctive Relief 18–19, in Munaf v. Harvey, No. 06–5324

(CADC, Oct. 25, 2006))).

Given these facts, our cases make clear that Iraq has a

sovereign right to prosecute Omar and Munaf for crimes

committed on its soil. As Chief Justice Marshall explained

nearly two centuries ago, “[t]he jurisdiction of the nation

within its own territory is necessarily exclusive and abso­

lute.” Schooner Exchange v. McFaddon, 7 Cranch 116,

136 (1812). See Wilson, supra, at 529 (“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”); Reid v.

Covert, 354 U. S. 1, 15, n. 29 (1957) (opinion of Black, J.)

(“[A] foreign nation has plenary criminal jurisdiction . . .

over all Americans . . . who commit offenses against its

laws within its territory”); Kinsella v. Krueger, 351 U. S.

470, 479 (1956) (nations have a “sovereign right to try and

punish [American citizens] for offenses committed within

their borders,” unless they “have relinquished [their]

jurisdiction” to do so).

This is true with respect to American citizens who travel

abroad and commit crimes in another nation whether or

not the pertinent criminal process comes with all the

18 MUNAF v. GEREN

Opinion of the Court

rights guaranteed by our Constitution. “When an Ameri­

can citizen commits a crime in a foreign country he cannot

complain if required to submit to such modes of trial and

to such punishment as the laws of that country may pre­

scribe for its own people.” Neely v. Henkel, 180 U. S. 109,

123 (1901).

The habeas petitioners nonetheless argue that the Due

Process Clause includes a “[f]reedom from unlawful trans­

fer” that is “protected wherever the government seizes a

citizen.” Brief for Habeas Petitioners 48. We disagree.

Not only have we long recognized the principle that a

nation state reigns sovereign within its own territory, we

have twice applied that principle to reject claims that the

Constitution precludes the Executive from transferring a

prisoner to a foreign country for prosecution in an alleg­

edly unconstitutional trial.

In Wilson, 354 U. S. 524, we reversed an injunction

similar to the one at issue here. During a cavalry exercise

at the Camp Weir range in Japan, Girard, a Specialist

Third Class in the United States Army, caused the death

of a Japanese woman. Id., at 525–526. After Japan in­

dicted Girard, but while he was still in United States

custody, Girard filed a writ of habeas corpus in the United

States District Court for the District of Columbia. Ibid.

The District Court granted a preliminary injunction

against the United States, enjoining the “proposed deliv­

ery of [Girard] to the Japanese Government.” Girard v.

Wilson, 152 F. Supp. 21, 27 (DC 1957). In the District

Court’s view, to permit the transfer to Japanese authority

would violate the rights guaranteed to Girard by the

Constitution. Ibid.

We granted certiorari, and vacated the injunction. 354

U. S., at 529–530. We noted that Japan had exclusive

jurisdiction “to punish offenses against its laws committed

within its borders,” unless it had surrendered that juris­

diction. Id., at 529. Consequently, even though Japan

Cite as: 553 U. S. ____ (2008) 19

Opinion of the Court

had ceded some of its jurisdiction to the United States

pursuant to a bilateral Status of Forces Agreement, the

United States could waive that jurisdiction—as it had

done in Girard’s case—and the habeas court was without

authority to enjoin Girard’s transfer to the Japanese

authorities. Id., at 529–530.

Likewise, in Neely v. Henkel, supra, this Court held that

habeas corpus was not available to defeat the criminal

jurisdiction of a foreign sovereign, even when application

of that sovereign’s law would allegedly violate the Consti­

tution. Neely—the habeas petitioner and an American

citizen—was accused of violating Cuban law in Cuba. Id.,

at 112–113. He was arrested and detained in the United

States. Id., at 113. The United States indicated its intent

to extradite him, and Neely filed suit seeking to block his

extradition on the grounds that Cuban law did not provide

the panoply of rights guaranteed him by the Constitution

of the United States. Id., at 122. We summarily rejected

this claim: “The answer to this suggestion is that those

[constitutional] provisions have no relation to crimes

committed without the jurisdiction of the United States

against the laws of a foreign country.” Ibid. Neely alleged

no claim for which a “discharge on habeas corpus” could

issue. Id., at 125. Accordingly, the United States was free

to transfer him to Cuban custody for prosecution.

In the present cases, the habeas petitioners concede that

Iraq has the sovereign authority to prosecute them for

alleged violations of its law, yet nonetheless request an

injunction prohibiting the United States from transferring

them to Iraqi custody. But as the foregoing cases make

clear, habeas is not a means of compelling the United

States to harbor fugitives from the criminal justice system

of a sovereign with undoubted authority to prosecute

them.

Petitioners’ “release” claim adds nothing to their “trans­

fer” claim. That claim fails for the same reasons the

20 MUNAF v. GEREN

Opinion of the Court

transfer claim fails, given that the release petitioners seek

is release in a form that would avoid transfer. See Tr. of

Oral Arg. 47–48; App. 40 (coupling Munaf’s claim for

release with a request for order requiring the United

States to bring him to a U. S. court); App. 123 (same with

respect to Omar). Such “release” would impermissibly

interfere with Iraq’s “exclusive jurisdiction to punish

offenses against its laws committed within its borders,”

Wilson, supra, at 529; the “release” petitioners seek is

nothing less than an order commanding our forces to

smuggle them out of Iraq. Indeed, the Court of Appeals in

Omar’s case took the extraordinary step of upholding an

injunction that prohibited the Executive from releasing

Omar—the quintessential habeas remedy—if the United

States shared information about his release with its mili­

tary ally, Iraq. 479 F. 3d, at 13. Habeas does not require

the United States to keep an unsuspecting nation in the

dark when it releases an alleged criminal insurgent within

its borders.

Moreover, because Omar and Munaf are being held by

United States Armed Forces at the behest of the Iraqi

Government pending their prosecution in Iraqi courts,

Mohammed, 456 F. Supp. 2d, at 117, release of any kind

would interfere with the sovereign authority of Iraq “to

punish offenses against its laws committed within its

borders,” Wilson, supra, at 529. This point becomes clear

given that the MNF–I, pursuant to its U. N. mandate, is

authorized to “take all necessary measures to contribute to

the maintenance of security and stability in Iraq,” App. G

to Pet. for Cert. in No. 07–394, p. 74a, ¶10, and specifically

to provide for the “internment [of individuals in Iraq]

where this is necessary for imperative reasons of security,”

id., at 86a.

While the Iraqi Government is ultimately “responsible

for [the] arrest, detention and imprisonment” of individu­

als who violate its laws, S. C. Res. 1790, Annex I, ¶4, p. 6,

Cite as: 553 U. S. ____ (2008) 21

Opinion of the Court

U. N. Doc. S/RES/1790 (Dec. 18, 2007), the MNF–I main­

tains physical custody of individuals like Munaf and Omar

while their cases are being heard by the CCCI, Moham­

med, supra, at 117. Indeed, Munaf is currently held at

Camp Cropper pursuant to the express order of the Iraqi

Courts. See In re Hikmat, No. 19/Pub. Comm’n/2007, at 5

(directing that Munaf “remain in custody pending the

outcome” of further Iraqi proceedings). As that court order

makes clear, MNF–I detention is an integral part of the

Iraqi system of criminal justice. MNF–I forces augment

the Iraqi Government’s peacekeeping efforts by function­

ing, in essence, as its jailor. Any requirement that the

MNF–I release a detainee would, in effect, impose a re­

lease order on the Iraqi Government.

The habeas petitioners acknowledge that some interfer­

ence with a foreign criminal system is too much. They

concede that “it is axiomatic that an American court does

not provide collateral review of proceedings in a foreign

tribunal.” Brief for Habeas Petitioners 39 (citing Republic

of Austria v. Altmann, 541 U. S. 677, 700 (2004)). We

agree, but see no reason why habeas corpus should permit

a prisoner detained within a foreign sovereign’s territory

to prevent a trial from going forward in the first place. It

did not matter that the habeas petitioners in Wilson and

Neely had not been convicted. 354 U. S., at 525–526; 180

U. S., at 112–113. Rather, “the same principles of comity

and respect for foreign sovereigns that preclude judicial

scrutiny of foreign convictions necessarily render invalid

attempts to shield citizens from foreign prosecution in

order to preempt such nonreviewable adjudications.”

Omar, 479 F. 3d, at 17 (Brown, J., dissenting in part).

To allow United States courts to intervene in an ongoing

foreign criminal proceeding and pass judgment on its

legitimacy seems at least as great an intrusion as the

plainly barred collateral review of foreign convictions. See

Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 417–

22 MUNAF v. GEREN

Opinion of the Court

418 (1964) (“ ‘To permit the validity of the acts of one

sovereign State to be reexamined and perhaps condemned

by the courts of another would very certainly “imperil the

amicable relations between governments and vex the

peace of nations” ’ ” (quoting Oetjen v. Central Leather Co.,

246 U. S. 297, 303–304 (1918); punctuation omitted)).4

There is of course even more at issue here: Neither

Neely nor Wilson concerned individuals captured and

detained within an ally’s territory during ongoing hostili­

ties involving our troops. Neely involved a charge of em­

bezzlement; Wilson the peacetime actions of a serviceman.

Yet in those cases we held that the Constitution allows the

Executive to transfer American citizens to foreign authori­

ties for criminal prosecution. It would be passing strange

to hold that the Executive lacks that same authority

where, as here, the detainees were captured by our Armed

Forces for engaging in serious hostile acts against an ally

in what the Government refers to as “an active theater of

combat.” Brief for Federal Parties 16.

Such a conclusion would implicate not only concerns

about interfering with a sovereign’s recognized prerogative

to apply its criminal law to those alleged to have commit­

ted crimes within its borders, but also concerns about

unwarranted judicial intrusion into the Executive’s ability

to conduct military operations abroad. Our constitutional

framework “requires that the judiciary be as scrupulous

not to interfere with legitimate Army matters as the Army

——————

4 The habeas petitioners claim that the injunction only bars Omar’s

presentation to the Iraqi courts and that the CCCI trial can go forward

in Omar’s absence. The injunction is not so easily narrowed. It was

entered on the theory that Omar might be “presented to the CCCI and

in that same day, be tried, [and] convicted,” thus depriving the United

States district courts of jurisdiction. Omar v. Harvey, 416 F. Supp. 2d

19, 29 (DC 2006). Petitioners’ interpretation makes no sense under

that theory: If a conviction would deprive the habeas court of jurisdic­

tion, a trial, with or without the defendant, could result in just such a

jurisdiction-divesting order.

Cite as: 553 U. S. ____ (2008) 23

Opinion of the Court

must be scrupulous not to intervene in judicial matters.”

Orloff v. Willoughby, 345 U. S. 83, 94 (1953). Those who

commit crimes within a sovereign’s territory may be trans­

ferred to that sovereign’s government for prosecution;

there is hardly an exception to that rule when the crime at

issue is not embezzlement but unlawful insurgency di­

rected against an ally during ongoing hostilities involving

our troops.

B

1

Petitioners contend that these general principles are

trumped in their cases because their transfer to Iraqi

custody is likely to result in torture. This allegation was

raised in Munaf’s petition for habeas, App. 39, ¶46, but

not in Omar’s. Such allegations are of course a matter of

serious concern, but in the present context that concern is

to be addressed by the political branches, not the judici­

ary. See M. Bassiouni, International Extradition: United

States Law and Practice 921 (2007) (“Habeas corpus has

been held not to be a valid means of inquiry into the

treatment the relator is anticipated to receive in the re­

questing state”).

This conclusion is reflected in the cases already cited.

Even with respect to claims that detainees would be de­

nied constitutional rights if transferred, we have recog­

nized that it is for the political branches, not the judiciary,

to assess practices in foreign countries and to determine

national policy in light of those assessments. Thus, the

Court in Neely concluded that an American citizen who

“commits a crime in a foreign country” “cannot complain if

required to submit to such modes of trial and to such

punishment as the laws of that country may prescribe for

its own people,” but went on to explain that this was true

“unless a different mode be provided for by treaty stipula­

tion between that country and the United States.” 180

24 MUNAF v. GEREN

Opinion of the Court

U. S., at 123. Diplomacy was the means of addressing the

petitioner’s concerns.

By the same token, while the Court in Wilson stated the

general principle that a “sovereign nation has exclusive

jurisdiction to punish offenses against its laws committed

within its borders,” it recognized that this rule could be

altered by diplomatic agreement in light of particular

concerns—as it was in that case—and by a decision of the

Executive to waive jurisdiction granted under that agree­

ment—as it was in that case. 354 U. S., at 529. See also

Kinsella, 351 U. S., at 479 (alteration of jurisdictional rule

through “carefully drawn agreements”). This recognition

that it is the political branches that bear responsibility for

creating exceptions to the general rule is nothing new; as

Chief Justice Marshall explained in the Schooner Ex­

change, “exemptions from territorial jurisdiction . . . must

be derived from the consent of the sovereign of the terri­

tory” and are “rather questions of policy than of law, that

they are for diplomatic, rather than legal discussion.” 7

Cranch, at 143, 146. The present concerns are of the same

nature as the loss of constitutional rights alleged in Wil­

son and Neely, and are governed by the same principles.5

The Executive Branch may, of course, decline to surren­

der a detainee for many reasons, including humanitarian

ones. Petitioners here allege only the possibility of mis­

treatment in a prison facility; this is not a more extreme

case in which the Executive has determined that a de­

tainee is likely to be tortured but decides to transfer him

——————

5 The United States has in fact entered into treaties that provide

procedural protections to American citizens tried in other nations. See,

e.g., North Atlantic Treaty: Status of Forces, June 19, 1951, 4 U. S. T.

1802, T. I. A. S. No. 2846, Art. VII, ¶9 (guaranteeing arrested members

of the Armed Forces and their civilian dependents, inter alia, an

attorney, an interpreter, and a prompt and speedy trial, as well as the

right to confront witnesses, obtain favorable witnesses, and communi­

cate with a representative of the United States).

Cite as: 553 U. S. ____ (2008) 25

Opinion of the Court

anyway. Indeed, the Solicitor General states that it is the

policy of the United States not to transfer an individual in

circumstances where torture is likely to result. Brief for

Federal Parties 47; Reply Brief for Federal Parties 23. In

these cases the United States explains that, although it

remains concerned about torture among some sectors of

the Iraqi Government, the State Department has deter­

mined that the Justice Ministry—the department that

would have authority over Munaf and Omar—as well as

its prison and detention facilities have “ ‘generally met

internationally accepted standards for basic prisoner

needs.’ ” Ibid. The Solicitor General explains that such

determinations are based on “the Executive’s assessment

of the foreign country’s legal system and . . . the Execu­

tive[’s] . . . ability to obtain foreign assurances it considers

reliable.” Brief for Federal Parties 47.

The Judiciary is not suited to second-guess such deter­

minations—determinations that would require federal

courts to pass judgment on foreign justice systems and

undermine the Government’s ability to speak with one

voice in this area. See The Federalist No. 42, p. 279 (J.

Cooke ed. 1961) (J. Madison) (“If we are to be one nation in

any respect, it clearly ought to be in respect to other na­

tions”). In contrast, the political branches are well situ­

ated to consider sensitive foreign policy issues, such as

whether there is a serious prospect of torture at the hands

of an ally, and what to do about it if there is. As Judge

Brown noted, “we need not assume the political branches

are oblivious to these concerns. Indeed, the other

branches possess significant diplomatic tools and leverage

the judiciary lacks.” 479 F. 3d, at 20, n. 6 (dissenting

opinion).

Petitioners briefly argue that their claims of potential

torture may not be readily dismissed on the basis of these

principles because the FARR Act prohibits transfer when

torture may result. Brief for Habeas Petitioners 51–52.

26 MUNAF v. GEREN

Opinion of the Court

Neither petitioner asserted a FARR Act claim in his peti­

tion for habeas, and the Act was not raised in any of the

certiorari filings before this Court. Even in their merits

brief in this Court, the habeas petitioners hardly discuss

the issue. Id., at 17, 51–52, 57–58. The Government

treats the issue in kind. Reply Brief for Federal Parties

24–26. Under such circumstances we will not consider the

question.6

2

Finally, the habeas petitioners raise the additional

argument that the United States may not transfer a de­

tainee to Iraqi custody, not because it would be unconsti­

——————

6 We hold that these habeas petitions raise no claim for relief under

the FARR Act and express no opinion on whether Munaf and Omar

may be permitted to amend their respective pleadings to raise such a

claim on remand. Even if considered on the merits, several issues

under the FARR Act claim would have to be addressed. First, the Act

speaks to situations where a detainee is being “returned” to “a country.”

FARR Act §2242(a), 112 Stat. 2681–822 (“It shall be the policy of the

United States not to expel, extradite, or otherwise effect the involun­

tary return of any person to a country in which there are substantial

grounds for believing the person would be in danger of being subjected

to torture, regardless of whether the person is physically present in the

United States”); see also Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, 1465 U. N. T. S. 85,

Art. 3, S. Treaty Doc. No. 20, 100th Cong., 2d Sess., p. 6 (1988) (“No

State Party shall expel, return (‘refouler’) or extradite a person to

another State where there are substantial grounds for believing that he

would be in danger of being subjected to torture” (emphasis added)). It

is not settled that the Act addresses the transfer of an individual

located in Iraq to the Government of Iraq; arguably such an individual

is not being “returned” to “a country”—he is already there.

Second, claims under the FARR Act may be limited to certain immi­

gration proceedings. See §2242(d), 112 Stat. 2681–822 (“[N]othing in

this section shall be construed as providing any court jurisdiction to

consider or review claims raised under the Convention or this section,

or any other determination made with respect to the application of the

policy set forth in [this section], except as part of the review of a final

order of removal pursuant to [8 U. S. C. §1252 (2000 ed. and Supp. V]”).

Cite as: 553 U. S. ____ (2008) 27

Opinion of the Court

tutional to do so, but because the “[G]overnment may not

transfer a citizen without legal authority.” Brief for Ha­

beas Petitioners 54. The United States, they claim, bears

the burden of “identify[ing] a treaty or statute that per­

mits it to transfer the[m] to Iraqi custody.” Id., at 49.

The habeas petitioners rely prominently on Valentine v.

United States ex rel. Neidecker, 299 U. S. 5 (1936), where

we ruled that the Executive may not extradite a person

held within the United States unless “legal authority” to

do so “is given by act of Congress or by the terms of a

treaty,” id., at 9. But Valentine is readily distinguishable.

It involved the extradition of an individual from the

United States; this is not an extradition case, but one

involving the transfer to a sovereign’s authority of an

individual captured and already detained in that sover­

eign’s territory. In the extradition context, when a “fugi­

tive criminal” is found within the United States, “ ‘there is

no authority vested in any department of the government

to seize [him] and surrender him to a foreign power,’ ” in

the absence of a pertinent constitutional or legislative

provision. Ibid. But Omar and Munaf voluntarily trav­

eled to Iraq and are being held there. They are therefore

subject to the territorial jurisdiction of that sovereign, not

of the United States. Moreover, as we have explained, the

petitioners are being held by the United States, acting as

part of MNF–I, at the request of and on behalf of the Iraqi

Government. It would be more than odd if the Govern­

ment had no authority to transfer them to the very sover­

eign on whose behalf, and within whose territory, they are

being detained.

The habeas petitioners further contend that this Court’s

decision in Wilson supports their argument that the Ex­

ecutive lacks the discretion to transfer a citizen absent a

treaty or statute. Brief for Habeas Petitioners 54–55.

Quite the opposite. Wilson forecloses it. The only “author­

ity” at issue in Wilson—a Status of Forces Agreement—

28 MUNAF v. GEREN

Opinion of the Court

seemed to give the habeas petitioner in that case a right to

be tried by an American military tribunal, not a Japanese

court. 354 U. S., at 529. Nevertheless, in light of the

background principle that Japan had a sovereign interest

in prosecuting crimes committed within its borders, this

Court found no “constitutional or statutory” impediment to

the United States’s waiver of its jurisdiction under the

agreement. Id., at 530.

* * *

Munaf and Omar are alleged to have committed hostile

and warlike acts within the sovereign territory of Iraq

during ongoing hostilities there. Pending their criminal

prosecution for those offenses, Munaf and Omar are being

held in Iraq by American forces operating pursuant to a

U. N. Mandate and at the request of the Iraqi Govern­

ment. Petitioners concede that Iraq has a sovereign right

to prosecute them for alleged violations of its law. Yet

they went to federal court seeking an order that would

allow them to defeat precisely that sovereign authority.

Habeas corpus does not require the United States to shel­

ter such fugitives from the criminal justice system of the

sovereign with authority to prosecute them.

For all the reasons given above, petitioners state no

claim in their habeas petitions for which relief can be

granted, and those petitions should have been promptly

dismissed. The judgments below and the injunction en­

tered against the United States are vacated, and the cases

are remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 553 U. S. ____ (2008) 1

SOUTER, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–1666 and 07–394

_________________

MOHAMMAD MUNAF, ET AL., PETITIONERS

06–1666 v.

PETE GEREN, SECRETARY OF THE

ARMY, ET AL.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.,

PETITIONERS

07–394 v.

SANDRA K. OMAR AND AHMED S. OMAR, AS

NEXT FRIENDS OF SHAWQI AHMAD OMAR

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[June 12, 2008]

JUSTICE SOUTER, with whom JUSTICE GINSBURG and

JUSTICE BREYER join, concurring.

The Court holds that “[u]nder circumstances such as

those presented here, . . . habeas corpus provides petition-

ers with no relief.” Ante, at 2. The Court’s opinion makes

clear that those circumstances include the following: (1)

Omar and Munaf “voluntarily traveled to Iraq.” Ante, at

16. They are being held (2) in the “territory” of (3) an

“all[y]” of the United States, ante, at 22, (4) by our troops,

see ante, at 8, (5) “during ongoing hostilities” that (6)

“involv[e] our troops,” ante, at 22. (7) The government of a

foreign sovereign, Iraq, has decided to prosecute them “for

crimes committed on its soil.” Ante, at 17. And (8) “the

State Department has determined that . . . the department

that would have authority over Munaf and Omar . . . as

well as its prison and detention facilities have generally

2 MUNAF v. GEREN

SOUTER, J., concurring

met internationally accepted standards for basic prisoner

needs.” Ante, at 25 (internal quotation marks omitted).

Because I consider these circumstances essential to the

Court’s holding, I join its opinion.

The Court accordingly reserves judgment on an “ex-

treme case in which the Executive has determined that a

detainee [in United States custody] is likely to be tortured

but decides to transfer him anyway.” Ante, at 24–25. I

would add that nothing in today’s opinion should be read

as foreclosing relief for a citizen of the United States who

resists transfer, say, from the American military to a

foreign government for prosecution in a case of that sort,

and I would extend the caveat to a case in which the prob-

ability of torture is well documented, even if the Executive

fails to acknowledge it. Although the Court rightly points

out that any likelihood of extreme mistreatment at the

receiving government’s hands is a proper matter for the

political branches to consider, see ante, at 23–24, if the

political branches did favor transfer it would be in order to

ask whether substantive due process bars the Government

from consigning its own people to torture. And although

the Court points out that habeas is aimed at securing

release, not protective detention, see ante, at 16, habeas

would not be the only avenue open to an objecting pris-

oner; “where federally protected rights [are threatened], it

has been the rule from the beginning that courts will be

alert to adjust their remedies so as to grant the necessary

relief,” Bell v. Hood, 327 U. S. 678, 684 (1946).