Omar, Sandra K. v. Harvey, Francis J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2006 Decided February 9, 2007

No. 06-5126

SANDRA K. OMAR AND

AHMED S. OMAR, AS NEXT FRIENDS OF SHAWQI AHMAD

OMAR,

APPELLEES

v.

FRANCIS J. HARVEY, SECRETARY OF THE UNITED STATES

ARMY, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 05cv02374)

Gregory G. Garre, Deputy Solicitor General, U.S.

Department of Justice, argued the cause for appellants. With

him on the briefs were Peter D. Keisler, Assistant Attorney

General, Kenneth L. Wainstein, U.S. Attorney at the time the

brief was filed, Gregory G. Katsas, Deputy Assistant Attorney

General, David B. Salmons, Assistant to Solicitor General,

Douglas Letter and Jonathan H. Levy, Attorneys. Steve

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Frank, Attorney, U.S. Department of Justice, entered an

appearance.

Aziz Z. Huq argued the cause for appellees. With him on

the brief were Susan L. Burke, Heather L. Allred, Joseph

Margulies, and Jonathan L. Hafetz.

Before: TATEL and BROWN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion dissenting in part filed by Circuit Judge BROWN.

TATEL, Circuit Judge: In this case we have before us a

petition for a writ of habeas corpus filed on behalf of Shawqi

Ahmad Omar, an American citizen captured and detained in

Iraq by United States military forces operating as part of the

Multi-National Force–Iraq. Omar has been held under the

control of United States forces for over two years, allegedly

without legal process and with no meaningful access to

counsel. When the district court learned of Omar’s imminent

transfer to Iraqi authorities for trial on terrorism charges, it

issued a preliminary injunction barring transfer in order to

preserve its jurisdiction to entertain the habeas petition. The

government appeals, arguing that the district court lacks

jurisdiction to entertain the petition and that, in any event, it

had no authority to enter the preliminary injunction because

Omar’s transfer to Iraqi authorities would afford him all the

relief he seeks, i.e., release from U.S. custody. For the

reasons set forth in this opinion, we affirm.

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I.

In late October 2004, United States military forces

operating in Iraq arrested appellee Shawqi Ahmad Omar, a

dual American/Jordanian citizen, at his Baghdad home. Born

in Kuwait, Omar became a naturalized American citizen

following his marriage to the former Sandra Kay Sulzle.

According to Omar, after the overthrow of the Saddam

Hussein government, he traveled to Iraq seeking

reconstruction-related work and would have left by November

2004 but for his arrest and detention.

The government paints a very different picture of Omar’s

presence in Iraq. According to the government, U.S. military

forces, operating in Iraq pursuant to U.N. Security Council

Resolutions 1546 (2003) and 1637 (2004) as part of the Multi-

National Force–Iraq (MNF-I), captured Omar during a raid on

associates of Abu Musab al-Zarqawi. The government

believes that Omar was part of Zarqawi’s network and that he

facilitated terrorist activities both in and outside of Iraq. The

government alleges that four Jordanian foreign fighters and an

Iraqi insurgent were captured along with Omar, and that

weapons and improvised explosive device making materials

were found in his home.

Following Omar’s arrest, an MNF-I panel of three

American military officers conducted a hearing to resolve his

status. According to the government, the process employed

by the panel exceeded the requirements of Article 5 of the

Third Geneva Convention. The record, however, reveals little

about the panel’s operation. We know only that the panel

permitted Omar to see the evidence against him, to make a

statement, and to call “immediately available” witnesses.

Declaration of John D. Gardner, Deputy Commanding

General for Detainee Operations, Multi-National Force–Iraq,

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at 3-4 (Feb. 7, 2006), reprinted in Joint Appendix 138-39

(hereinafter “Gardner Decl.”). After the hearing, the panel

declared Omar to be a “security internee under the law of

war” and an “‘enemy combatant’ in the war on terrorism.”

Appellants’ Br. 9. The panel also found that Omar was not a

prisoner of war for purposes of the Third Geneva Convention.

Since the panel’s decision, American MNF-I officials have

held Omar at various detention facilities in Iraq. According to

Omar, the military has transferred him between Camp

Cropper, the Abu Ghraib prison, and Camp Bucca. Omar has

been in custody for over two years without formal charges

and, he alleges, without access to counsel.

In August 2005, the MNF-I decided to refer Omar to the

Central Criminal Court of Iraq (CCCI) for trial. The record

indicates neither who made this decision nor what procedures

were followed. The CCCI, a Baghdad-based Iraqi court, has

national jurisdiction over an array of criminal offenses,

including terrorism. According to the government, during the

CCCI investigation and trial phases, the MNF-I maintains

physical custody of detainees like Omar, turning them over to

the Iraqi Ministry of Justice only after conviction.

On December 12, 2005, Omar’s wife, Sandra, and son,

Ahmed, filed a petition for a writ of habeas corpus as Omar’s

next friends. Brought in the United States District Court for

the District of Columbia, the petition names as respondents

Francis J. Harvey, Secretary of the Army; Major General

William H. Brandenburg, then-Deputy Commanding General

of Detainee Operations and Commanding General of Task

Force 134, MNF-I; and Lieutenant Colonel Timothy Houser

of the 105th Military Police Battalion, commanding officer at

Camp Bucca. The petition asserts that Omar’s detention by

the United States military violates numerous constitutional

provisions, chief among them the right to due process

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guaranteed by the Fifth Amendment. The petition asks the

district court to “[i]ssue a Writ of Habeas Corpus requiring

Respondents to release Shawqi Omar from detention, and/or

requiring Respondents to bring Shawqi Ahmad Omar before a

court of competent jurisdiction in the United States to show

just cause for his continued detention.” Habeas Pet. at 17.

Also alleging that “the United States military may turn Mr.

Omar over to the custody of Iraqi authorities in an effort to

evade the strictures of United States law,” id. at 12-13, the

petition asks the district court to “[e]njoin Respondents from

transferring Mr. Omar to the authority of any other

government, sovereign, country, or agency until [the district

court] has an opportunity to consider and decide the merits of

this Petition.” Id. at 17.

Approximately two months after filing the petition,

Omar’s attorney received an e-mail from the Department of

Justice informing her of the MNF-I’s earlier decision to refer

Omar to the CCCI. Believing that CCCI proceedings could

interrupt American custody of Omar, thereby stripping the

district court of jurisdiction, that transfer would amount to an

illegal extradition, and that Omar would likely face torture by

Iraqi authorities, the attorney sought and received an ex parte

temporary restraining order requiring that Omar “not be

removed from United States custody.” Order Granting the Ex

Parte Motion for a TRO at 2.

In a memorandum filed shortly after entry of the TRO,

the government challenged the district court’s jurisdiction to

entertain the petition. The government relied principally on

Hirota v. MacArthur, 338 U.S. 197 (1948), in which the

Supreme Court held that World War II Japanese officials

could not invoke habeas to challenge their conviction by a

multinational military tribunal. The government also argued

that the district court had no authority to issue injunctive relief

6

because doing so would “inject [the court] into an exclusive

Executive function” and because adjudication of Omar’s

potential referral to the CCCI “raises non-justiciable political

questions.” Resp’ts’ Opp’n to Pet’rs’ Ex Parte Mot. for a

TRO at 22, 25.

Following briefing, the district court converted the TRO

into a preliminary injunction ordering that “the respondents . .

. 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

memorandum opinion.” Order Granting the Mot. for a

Prelim. Inj. (hereinafter “Prelim. Inj. Order”). In the

accompanying memorandum opinion, the court explained that

the jurisdictional issues in the case presented questions “so

serious, substantial, difficult and doubtful, as to make them

fair ground for litigation and thus for more deliberative

investigation.” Omar v. Harvey, 416 F. Supp. 2d 19, 23-24

(D.D.C. 2006) (internal quotation marks omitted) (quoting

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,

559 F.2d 841, 844 (D.C. Cir. 1977)). Fearing imminent

referral to the CCCI would forever preclude a more

deliberative investigation of the weighty jurisdictional

questions, the court issued the injunction to freeze the status

quo. In doing so, the court credited Omar’s contention that

transfer could irreparably deprive him of this investigation by

“undo[ing the] court’s jurisdiction.” Id. at 28. This, the court

concluded, “would abuse the process now put in place for the

purpose of adjudicating matters on their merits.” Id.

The government appeals, arguing (as it did in the district

court) that Hirota controls and that Omar’s challenge presents

non-justiciable political questions. The government also

argues that even if the district court does have jurisdiction, its

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injunction was improper because, by prohibiting Omar’s

removal from American or MNF-I custody, it bars the

government from providing Omar “all of the relief to which

he is entitled through a writ of habeas corpus.” Appellants’

Br. 20. We consider each issue in turn.

II.

The “great writ” of habeas corpus, as Blackstone called

it, has for centuries functioned as the “symbol and guardian of

individual liberty.” Peyton v. Rowe, 391 U.S. 54, 58 (1968).

By the seventeenth century, the writ had become “the highest

remedy in law, for any man that is imprisoned.” WILLIAM F.

DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 46-

49 (1980) (internal quotation marks and citation omitted). In

the eighteenth century, it was the only common law writ

expressly mentioned in the United States Constitution. See

U.S. CONST. art. I, § 9, cl. 2; Hamdi v. Rumsfeld, 542 U.S.

507, 558 (2004) (Scalia, J., dissenting). And now, in the

twenty-first century, the writ continues to protect fundamental

rights as the United States confronts the challenge of

international terrorism. Indeed, since September 11, the

Supreme Court has considered habeas petitions filed on behalf

of at least three accused terrorists, confirming “the federal

courts’ power to review applications for habeas relief in a

wide variety of cases involving executive detention, in

wartime as well as in times of peace.” Rasul v. Bush, 542

U.S. 466, 474 (2004); see also Hamdan v. Rumsfeld, 548 U.S.

___, 126 S. Ct. 2749 (2006) (entertaining habeas petition of

alien detained at Guantanamo Bay, Cuba); Hamdi, 542 U.S.

507 (plurality opinion) (entertaining habeas petition of

American citizen detained within the United States).

Notwithstanding the writ’s long and celebrated history,

the government argues that the district court lacks jurisdiction

8

to consider Omar’s petition. Although acknowledging both

that U.S. military officials are holding Omar, Appellants’ Br.

15, and that those officials operate “subject to” no

independent MNF-I authority, Oral Arg. Tr. 11, the

government contends that federal courts lack jurisdiction to

entertain habeas corpus petitions filed by individuals detained

by American military officials operating as part of a

multinational force. In support, the government relies

primarily on Hirota, in which the Supreme Court ruled that

the courts of the United States had no jurisdiction to entertain

habeas petitions filed by Japanese citizens convicted and

sentenced by an American-led international military tribunal

in Japan “set up by General MacArthur as the agent of the

Allied Powers.” 338 U.S. at 198. From Hirota, the

government draws the general principle that federal courts

lack habeas jurisdiction over individuals held by “United

States military personnel under the auspices of a multinational

force that is distinct from the United States military and

ultimately derives its existence from an international body.”

Appellants’ Br. 32. Applying that principle to this case and

pointing out that Omar, like the Hirota petitioners, is in the

custody of American officials acting as part of a multinational

force, the government argues that Hirota “compels the

dismissal of this habeas petition.” Appellants’ Br. 25.

Omar disagrees. Pointing out that the Hirota petitioners

filed directly in the Supreme Court, he argues that “Hirota’s

holding concerns the scope of Supreme Court jurisdiction

under Article III of the Constitution.” Appellees’ Br. 29. Yet

just six months after Hirota, in Flick v. Johnson, 174 F.2d 983

(D.C. Cir. 1949), we applied Hirota to a habeas corpus

petition filed not in the Supreme Court, but in the district

court by an individual who, like the Hirota petitioners, had

been convicted by an international tribunal. In this circuit,

9

then, Hirota applies to habeas proceedings in the district

court.

Omar also argues that Hirota “lacks vitality today” given

that the Supreme Court has since “clarified the broad

availability of habeas corpus.” Appellees’ Br. 23-24. In

support, Omar cites Madsen v. Kinsella, 343 U.S. 341 (1952),

and United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

In both of those cases, however, the habeas petitioners had

been convicted not by multinational tribunals, but rather by

American tribunals sitting in foreign countries, i.e., Germany

(Madsen) and Korea (Toth). Thus, neither case has anything

to do with the issue the Supreme Court faced in Hirota. Omar

also relies on Hamdi, 542 U.S. 507, and Rasul, 542 U.S. 466.

Although we share Omar’s view that these decisions provide a

basis for questioning Hirota’s vitality, the Supreme Court has

never revisited the precise issue it confronted there, namely

the availability of habeas to non-citizens convicted abroad by

multinational tribunals. As the Supreme Court has cautioned,

“[i]f a precedent of [the Supreme] Court has direct application

in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to [the Supreme] Court the

prerogative of overruling its own decisions.” Rodriguez de

Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989).

That said—and setting aside Omar’s suggestion that

Hirota is distinguishable because the MNF-I may not be as

authentically multinational as the Allied Forces in Japan—we

agree with Omar that Hirota is not nearly as broad as the

government insists. A nine-sentence per curiam opinion,

Hirota reads—in its entirety—as follows:

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The petitioners, all residents and citizens of

Japan, are being held in custody pursuant to the

judgment of a military tribunal in Japan. Two

of the petitioners have been sentenced to death,

the others to terms of imprisonment. They

filed motions in this Court for leave to file

petitions for habeas corpus. We set all the

motions for hearing on the question of our

power to grant the relief prayed and that issue

has now been fully presented and argued.

We are satisfied that the tribunal

sentencing these petitioners is not a tribunal of

the United States. The United States and other

allied countries conquered and now occupy and

control Japan. General Douglas MacArthur

has been selected and is acting as the Supreme

Commander for the Allied Powers. The

military tribunal sentencing these petitioners

has been set up by General MacArthur as the

agent of the Allied Powers.

Under the foregoing circumstances the

courts of the United States have no power or

authority to review, to affirm, set aside or

annul the judgments and sentences imposed on

these petitioners and for this reason the

motions for leave to file petitions for writs of

habeas corpus are denied.

338 U.S. at 198. As is apparent, Hirota nowhere explains

which “circumstances” were controlling. Nor does anything

in the opinion hold that federal courts lack habeas jurisdiction

whenever, as the government insists, American officials

detaining a petitioner are functioning as part of a

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multinational force. Indeed, the opinion articulates no general

legal principle at all. The Court, moreover, has never cited

Hirota for any substantive proposition, much less the one the

government claims it supports. None of this should be

surprising given that the Court heard Hirota not on a petition

for certiorari granted to resolve an important question of law,

see SUP. CT. R. 38(5) (1939) (“A review on writ of certiorari .

. . will be granted only where there are special and important

reasons therefor.”), but rather as an original petition for

habeas corpus. This, together with the terse per curiam

opinion, reveals a Court determined to resolve the case on the

narrowest possible grounds.

We thus take the Court at its word: it lacked habeas

jurisdiction because of the “circumstances” of the case. As a

matter of precedent, then, Hirota would “control” this case

only if the “circumstances” significant to the Court’s decision

are present here. Two circumstances are clearly the same:

detention overseas and the existence of a multinational force.

But two other circumstances—foreign citizenship and

criminal conviction—are absent. Were we writing on a clean

slate, we would thus have to determine which of these

circumstances influenced the Court’s decision.

But our slate is not clean. In Flick, we considered a

habeas petition filed by a German citizen held by American

troops in Germany pursuant to his conviction by an entity

known as the Military Tribunal IV. 174 F.2d 983. Given

Hirota, we asked: “Was the court which tried and sentenced

Flick a tribunal of the United States?” Id. at 984. “If it was

not,” we explained, then under Hirota, “no court of this

country has power or authority to review, affirm, set aside or

annul the judgment and sentence imposed on Flick.” Id.

Concluding that the Military Tribunal IV was not, in fact, an

American tribunal, we dismissed the petition.

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Flick thus holds that the critical factor in Hirota was the

petitioners’ convictions by an international tribunal, and for

good reason. Throughout its brief opinion, the Hirota Court

repeatedly referred to the petitioners’ sentences, including

imprisonment and death, concluding it lacked habeas

jurisdiction “to review, to affirm, set aside or annul the

judgments and sentences imposed on these petitioners.”

Hirota, 338 U.S. at 198. Such language demonstrates that the

Court’s primary concern was that the petitions represented a

collateral attack on the final judgment of an international

tribunal.

Viewed in this light, Hirota does not control this case.

Unlike the Hirota and Flick petitioners, Omar has not been

charged with a crime related to the allegations now lodged

against him, much less convicted of one. Omar seeks not to

collaterally attack a final international conviction, but only to

test the lawfulness of his extrajudicial detention in Iraq, where

he has remained in the control of U.S. forces for over two

years without legal process. True, a panel of three military

officers found him to be a “security internee” and an “enemy

combatant,” but those determinations, based as they are on

military considerations, are a far cry from trial, judgment, and

sentencing. See Hamdi, 542 U.S. at 518-19 (discussing

enemy combatant status); Major General George R. Fay, AR

15-6 Investigation of the Abu Ghraib Detention Facility and

205th Military Intelligence Brigade 12 (Aug. 23, 2004),

available at http://www.defenselink.mil/news/

Aug2004/d20040825fay.pdf (describing military definition of

security internees as “[c]ivilians interned during conflict or

occupation for their own protection or because they pose a

threat to the security of coalition forces, or its mission, or are

of intelligence value”). Habeas proceedings here run no risk,

as they did in both Hirota and Flick, of judicial second-

13

guessing of an international tribunal’s final determination of

guilt.

The fact that Omar has never been convicted of criminal

activity thus distinguishes this case from both Hirota and

Flick, and rightly so, given that challenging extrajudicial

detention is among the most fundamental purposes of habeas.

“At its historical core,” the Supreme Court has explained, “the

writ of habeas corpus has served as a means of reviewing the

legality of Executive detention, and it is in that context that its

protections have been strongest.” INS v. St. Cyr, 533 U.S.

289, 301 (2001); see also Brown v. Allen, 344 U.S. 443, 533

(1953) (Jackson, J., concurring in the judgment) (“The

historic purpose of the writ has been to relieve detention by

executive authorities without judicial trial.”). Acting in

tandem with its partners-in-liberty—the Due Process Clauses

of the Fifth and Fourteenth Amendments—the great writ is

“the instrument by which due process [can] be insisted upon

by a citizen illegally imprisoned.” Hamdi, 542 U.S. at 555-56

(Scalia, J., dissenting). Where, as in Hirota and Flick,

individuals have been convicted and sentenced by a criminal

tribunal, some form of judicial process has occurred, reducing

the risk of unlawful extrajudicial detention. But where, as

here, the Executive detains an individual without trial, the risk

of unlawful incarceration is at its apex.

In addition to Hirota, the government cites cases holding

that federal courts may not grant habeas relief to Americans

held by foreign governments, see, e.g., United States ex rel.

Keefe v. Dulles, 222 F.2d 390 (D.C. Cir. 1954), and that

habeas is unavailable to Americans held in U.S. custody

pursuant to a foreign conviction, see, e.g., Bishop v. Reno, 210

F.3d 1295 (11th Cir. 2000). Such propositions, however, have

nothing to do with this case since Omar is neither detained nor

convicted by a foreign nation.

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With Hirota and the other cases the government cites

thus distinguished, Omar’s petition fits comfortably within the

terms of the modern habeas statute—a proposition the

government nowhere contests. Under 28 U.S.C. § 2241,

federal courts have authority to issue the writ “within their

respective jurisdictions” to prisoners “in custody under or by

color of the authority of the United States.” 28 U.S.C.

§ 2241(a), (c)(1). Omar’s petition satisfies both requirements.

First, the petition is “within the jurisdiction” of the district

court because respondents, the Secretary of the Army and two

high-ranking Army officers, are amenable to service in the

District of Columbia. See Rasul, 542 U.S. at 478-79 (“[A]

district court acts within [its] respective jurisdiction within the

meaning of § 2241 as long as the custodian can be reached by

service of process.” (second alteration in original) (internal

quotation marks omitted)). Second, although American

personnel in Iraq operate as part of the MNF-I, the

government concedes that Omar is “held” by U.S. forces,

Appellants’ Br. 15, and that those forces operate “subject to”

no independent MNF-I authority, Oral Arg. Tr. 11. Omar is

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

United States.” As a consequence, the district court has

jurisdiction to entertain Omar’s habeas petition.

III.

The government next argues that the district court lacked

jurisdiction to enter the preliminary injunction because this

case “raise[s] quintessential political questions beyond the

authority or competence of the judiciary to answer.”

Appellants’ Br. 41. The political question doctrine puts

beyond judicial cognizance “political decisions that are by

their nature committed to the political branches.” Schneider

v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal

quotation mark omitted). For example, and relevant to this

15

case, the doctrine bars courts from considering claims whose

adjudication would require judicial wading into foreign policy

or military waters. Thus, in Schneider we invoked the

political question doctrine to dismiss a claim that would have

required us to second-guess U.S. policy towards Chile. Id. at

197-98. Similarly, in Bancoult v. McNamara, 445 F.3d 427,

436-37 (D.C. Cir. 2006), we dismissed a complaint that would

have required us to review the manner in which the United

States established a military base in the Indian Ocean. Here,

the government argues that Omar’s petition would likewise

require the court to interfere with the “Executive’s textual

constitutional authority to implement foreign policy and

military functions for the purpose of protecting national

security.” Appellants’ Br. 43.

As the political question doctrine is one “of ‘political

questions,’ not one of ‘political cases,’” Baker v. Carr, 369

U.S. 186, 217 (1962), we must focus on Omar’s specific

claims. First, he challenges his detention, claiming that U.S.

military officials are holding him in violation of the

Constitution, federal law, Army regulations, and international

law. Critically for present purposes, Omar alleges that he is

held in violation of the Due Process Clause of the Fifth

Amendment because his “arrest and arbitrary, indefinite

detention without process . . . violates . . . [his] ‘interest in

being free from physical detention by one’s own

government.’” Habeas Pet. at 13 (quoting Hamdi, 542 U.S. at

529). Second, he challenges his transfer, arguing both that the

military lacks treaty or statutory authorization to transfer him

to Iraqi authorities and that the U.S. Constitution forbids

transfer to a government likely to torture him.

The Supreme Court’s recent decision in Hamdi makes

abundantly clear that Omar’s challenge to his detention is

justiciable. In Hamdi, as here, the petitioner challenged his

16

detention by U.S. military authorities pursuant to an “enemy

combatant” determination. Although the government never

directly invoked the political question doctrine, it argued that

separation of powers concerns—the very concerns underlying

the political question doctrine—preclude courts from

inquiring into the factual basis of an enemy combatant

designation. “A commander’s wartime determination that an

individual is an enemy combatant,” the government urged, “is

a quintessentially military judgment representing a core

exercise of the Commander-in-Chief authority.” Br. for the

Resp’ts at 25, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No.

03-6696). Unequivocally rejecting this contention, the Hamdi

plurality explained that “it does not infringe on the core role

of the military for the courts to exercise their own time-

honored and constitutionally mandated roles of reviewing and

resolving claims like those presented here.” Hamdi, 542 U.S.

at 535.

Omar’s challenge to his transfer is equally justiciable. He

argues (1) that the military may not transfer him to Iraqi

authorities without treaty or statutory authorization, and (2)

that the military lacks such authorization. In the extradition

context, of course, treaty or statutory authorization has long

been required, Valentine v. United States ex rel. Neidecker,

299 U.S. 5, 8 (1936) (“[A]lbeit a national power, [authority to

extradite] is not confided to the Executive in the absence of

treaty or legislative provision.”), and we have some reason to

believe this rule applies beyond the extradition context, see

Wilson v. Girard, 354 U.S. 524, 528-30 (1957) (per curiam)

(permitting in-country transfer of American service member

to Japanese custody after noting that an agreement authorized

by a treaty provided for transfer).

Our decisions in Holmes v. Laird, 459 F.2d 1211 (D.C.

Cir. 1972), and in countless other cases make clear that courts

17

may determine whether the Executive possesses the necessary

authority for transfer—the second of the two questions Omar

raises. In Holmes, American soldiers convicted by a German

court of attempted rape escaped U.S. military custody,

returned to the United States, and then sought to prevent the

military from transferring them to German custody. Id. at

1214. In support, they argued (among other things) that they

were “surrenderable only pursuant to the terms of an

extradition treaty.” Id. at 1219 n.59. Although ultimately

rejecting the petitioners’ authorization claim, we first satisfied

ourselves that a valid treaty in fact authorized the transfers.

Id.; see also Neidecker, 299 U.S. at 18 (denying extradition

after determining that “the treaty with France fails to grant the

necessary authority”).

The antecedent question—whether Omar’s transfer even

requires treaty or statutory authorization—is also fully

justiciable. On the merits, the government will surely argue

that under Article II of the Constitution, the military needs no

express authority to transfer detainees like Omar. Resolving

this claim will involve difficult questions of constitutional

law—questions which, significantly for our purposes, will

require no judicial intrusion into the exclusive domain of the

political branches. To be sure, a decision on the merits might

well have implications for military and foreign policy, but that

alone hardly makes the issue non-justiciable. For example, in

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952), the government’s assertion that wartime seizure of

steel mills was “necessary to avert a national catastrophe

which would inevitably result from a stoppage of steel

production,” id. at 582, failed to prevent the Supreme Court

from deciding whether the President may seize private

property without congressional authorization. Likewise, in

United States v. Curtiss-Wright Export Corp., 299 U.S. 304

(1936), the Court, despite the obvious implications for U.S.

18

foreign policy, decided whether the President could

constitutionally issue export controls on munitions absent

specific statutory authorization. In each of these cases, the

Court resolved a fundamental question of Executive authority

without making any foreign policy or military judgments of

its own. This case, like Youngstown and Curtiss-Wright and

unlike Schneider and Bancoult, supra, presents constitutional

issues that courts can resolve without making any judgments

about foreign policy or the war in Iraq.

Finally, the “rule of non-inquiry,” which bars courts from

“investigating the fairness of a requesting nation’s justice

system,” In re Extradition of Howard, 996 F.2d 1320, 1329

(1st Cir. 1993), does not require a different result. According

to the government, Omar’s allegation that he faces torture at

the hands of the Iraqis is precisely the type of claim the rule of

non-inquiry bars courts from considering. This may be

correct. See, e.g., In re Extradition of Manzi, 888 F.2d 204,

205-06 (1st Cir. 1989) (permitting extradition to Italy and

refusing to allow evidence on the petitioner’s claim that his

life would be threatened by the transfer). But see Gallina v.

Fraser, 278 F.2d 77, 79 (2d Cir. 1960) (suggesting in dicta

that there may one day arise a transfer so “antipathetic to a

federal court’s sense of decency as to require reexamination

of” the rule of non-inquiry). But since the only question

before us at this stage of the litigation relates to the district

court’s jurisdiction, and given our earlier conclusion that the

political question doctrine presents no jurisdictional bar to

Omar’s challenge to his detention and transfer, we need not

address his torture claims. The rule of non-inquiry therefore

has no relevance to our disposition of the matter before us at

this stage of the litigation.

19

IV.

Having established that the district court has jurisdiction,

we turn to the propriety of the preliminary injunction.

Applying the standard four-factor analysis, see Mova Pharm.

Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998)

(listing requirements for preliminary injunctions), the district

court enjoined Omar’s removal from American or MNF-I

custody in order to preserve its jurisdiction to address the

case’s “serious, substantial, difficult, and doubtful” issues.

416 F. Supp. 2d at 28 (internal quotation marks omitted)

(quoting Holiday Tours, 559 F.2d at 844).

The government challenges the injunction, claiming that

the district court improperly barred Omar’s outright release

even though such release is precisely what his “petition

ultimately seeks.” Appellants’ Br. 57. The injunction, in

relevant part, orders that the respondents “shall not remove

the petitioner from United States or MNF-I custody.” Prelim.

Inj. Order (emphasis added). Although “remove” could

include outright release, given the circumstances of this case,

we interpret the word differently. Omar did not seek an

injunction barring his outright release, nor could he have; he

sought an injunction prohibiting his transfer to Iraqi

authorities in order to preserve the district court’s jurisdiction

to entertain his habeas petition. We thus understand the court

to have used the word “remove” to prevent Omar’s transfer in

any form, whether by an official handoff or otherwise.

Viewed this way, the injunction does not bar a bona fide

release of Omar, even if the military releases him inside Iraq.

The government’s primary challenge to the injunction

(other than the jurisdictional arguments we have rejected in

parts II and III), is its claim that transfer to Iraqi authorities

constitutes release from American/MNF-I custody—“all of

20

the relief to which [Omar] is entitled through a writ of habeas

corpus.” Appellants’ Br. 20. The government asserts that

transfer is release because transfer “would end his detention

by the MNF-I, which is the sole arguable basis for the district

court’s jurisdiction.” Appellants’ Br. 58. In other words, the

government sees transfer as a subset of release; one can be

“released” either by being let go into the open, or by being

transferred to a different authority.

There is, however, an obvious and quite significant

difference between transferring Omar to Iraqi authorities and

releasing him to walk free from his current detention. If

transferred, Omar would remain in custody and detention; if

released he might not. Indeed, were the government correct,

federal courts would have no authority to stay an extradition

long enough to test its validity since transfer to the foreign

authority would, as the government sees it, be the same as

release. Yet courts routinely stay extraditions, see, e.g.,

Ntakirutimana v. Reno, 184 F.3d 419, 423 n.7 (5th Cir. 1999)

(stay of extradition pending appeal); Then v. Melendez, 92

F.3d 851, 853 n.1 (9th Cir. 1996) (same), and for good reason:

transferring a petitioner to the foreign country seeking

extradition is obviously not the same as releasing him.

To be sure, as the government argues, Iraqi authorities

might arrest Omar the moment U.S. forces release him.

Expanding on this point, the dissent speculates that “if the

government simply releases Omar and allows him to walk out

of Camp Bucca, he might well find a dozen armed Iraqi

soldiers waiting for him.” Dissenting Op. at 6. The dissent

also thinks that U.S. military officials could “notify Iraqi

authorities as to the exact time and place of [his] release,

thereby effectively ensuring his immediate recapture and

detention.” Id. As a result, the dissent maintains, Omar has

failed to demonstrate irreparable injury because even if he

21

prevails at his habeas hearing, he may nonetheless end up in

Iraqi custody. We disagree.

To begin with, such speculation at the appellate level

cannot defeat Omar’s right to a habeas hearing on the

lawfulness of his detention and transfer. See CityFed Fin.

Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.

Cir. 1995) (“We review a district court decision regarding a

preliminary injunction for abuse of discretion . . . .”). At this

point in time, we have no way of knowing how the U.S.

military would release Omar if the district court ultimately

rules in his favor, much less whether and to what extent the

military would communicate with Iraqi authorities. Nor do

we have any idea what would happen to Omar once released.

Perhaps he would end up in Iraqi custody, but perhaps he

would not. For example, perhaps because of developments at

the habeas hearing, such as the appearance of defects in the

government’s case or the introduction of exculpatory

evidence, the Iraqis would decide that Omar is no longer

worth prosecuting. Or perhaps by the time the district court

ordered Omar’s release, Iraqi priorities would have changed,

leaving Iraqi authorities uninterested in allocating scarce

military resources—much less the dissent’s dozen

soldiers—to his arrest. The point is that on the record before

us at this stage of these proceedings, neither the government

nor the dissent nor we can possibly know what would happen

to Omar if the district court barred his transfer and ordered his

release. Given this uncertainty, a preliminary injunction

protecting Omar from the certainty of transfer now is hardly

an “empty gesture.” See Dissenting Op. at 7.

The dissent’s speculation about a U.S. military “tip-off”

to the Iraqis suffers from a second defect. If the district court

ultimately rules that the U.S. military lacks authority to

transfer Omar, the military will be unable to transfer him

22

either directly through a formal handoff or indirectly by

“releasing” him with a wink-and-a-nod to the Iraqis. The

United States may certainly share information with other

sovereigns, see id. at 6-7, but it may not do so in a way that

converts Omar’s “release” into a transfer that violates a court

order. The district court has jurisdiction to hear Omar’s

habeas petition, see part III supra, and federal courts have

authority to enforce their orders; contrary to the dissent, see

Dissenting Op. at 6, the political question doctrine is not

implicated. In any event, we think it exceedingly unlikely

that American military officers, sworn to uphold the law and

represented by the Justice Department, would evade an order

of a United States district court. Indeed, if the district court

orders Omar’s release, we are confident that military officials

and their lawyers will work in good faith with the district

court to fashion an order that, based on then-existing

circumstances, ensures his lawful release from American

custody.

The government’s observation that “a court may not

artificially prolong a case or controversy by issuing an

injunction the effect of which is to prevent the Government

from rendering the petition moot by granting relief,”

Appellants’ Br. 57, though undoubtedly correct, has nothing

to do with the issue before us. Because the military plans to

transfer Omar to Iraqi authorities, not to release him, the

preliminary injunction, far from “prevent[ing] the

Government from rendering the petition moot by granting

relief,” preserves the district court’s jurisdiction to review the

lawfulness of that transfer.

The government cites Spencer v. Kemna, 523 U.S. 1

(1998), for the proposition that a prisoner’s final release from

prison moots his habeas petition. It also cites a series of

cases, including Yohey v. Collins, 985 F.2d 222 (5th Cir.

23

1993), for the proposition that conviction moots a pre-trial

habeas petition. Omar, however, has not been released nor

has he been convicted of a crime, so the cited decisions have

no bearing on this case.

Taking a different tack, the dissent believes Omar has

failed to demonstrate likelihood of success on the merits

because “to make an injunction against transfer to Iraqi

authorities a viable form of preliminary relief, Omar would

need to show . . . . [what] we might call ‘release plus,’” i.e.,

“release combined with immunity to Iraqi prosecution, release

following surreptitious transport out of Iraq, or release with a

promise to conceal the time and place of the release.”

Dissenting Op. at 8. Like the dissent’s other arguments, this

argument is wholly speculative, for it assumes, without record

support, that Omar will, once released, require protection

from Iraqi authorities. But as we indicate above, no one

knows at this time what will happen to Omar if the district

court orders his release. Speculating about the conditions

under which the military might release Omar or the

lawfulness of those conditions is thus not only

premature—the matter may never arise—but irrelevant to the

issue before us: whether the district court abused its discretion

in issuing the injunction. In any event, Omar’s petition does

not seek “release plus”; rather, alleging that Omar is being

held by the U.S. military in violation of his constitutional

rights, the petition seeks his release from military custody.

The dissent asserts that “interference by a court in the

decisions of sovereigns acting jointly within the same territory

is unprecedented,” Dissenting Op. at 9-10, citing only Floyd

v. Henderson, 456 F.2d 1117 (5th Cir. 1972), in support. In

Floyd, a federal prisoner argued that the federal government

could no longer exercise jurisdiction over him because the

Attorney General had transferred him to a state prison, where

24

he served a state sentence concurrently with his federal

sentence. Because a statute, 18 U.S.C. § 4082, authorized the

Attorney General to assign federal prisoners to state prisons,

the court ruled that “[the statutory] authority is sufficient to

permit the transfer of petitioner from one institution to

another prison.” 456 F.2d at 1119. But as we have explained,

whether the military has authority to transfer Omar is one of

the central questions in this habeas litigation. Floyd and the

proposition for which the dissent cites it would thus become

relevant only if the district court rules either that the military

possesses the requisite statutory or treaty authority to transfer

Omar, or that no such authority is necessary.

According to the dissent, “the bar on Omar’s presentation

before the CCCI while in United States custody is improper.”

Dissenting Op. at 5. Although we agree with the dissent that

the injunction prohibits the military from presenting Omar to

the CCCI for trial, we think this an appropriate exercise of the

district court’s discretion. The dissent’s argument hinges on

the assumption, unsupported in the record, that Omar’s

“presentation does not hamper the ability of the government

to order Omar’s release should the district court rule in his

favor.” Id. Although the government has advised us that the

“MNF-I maintains physical custody of detainees while their

cases are being heard by the CCCI,” Gardner Decl. at 6, we

cannot determine from the record whether this means legal

custody. We are thus uncertain whether once Omar is in a

CCCI courtroom, the Iraqi judge could remand him to Iraqi

custody, an action that would obviously defeat the district

court’s habeas jurisdiction. Nor can we determine whether

Omar’s presentation for trial might by itself amount to the

very “transfer” that Omar argues the military lacks authority

to execute. Given these uncertainties and their potential

implications for habeas jurisdiction, the district court, by

25

enjoining Omar’s presentation for trial, clearly acted within

its discretion.

Pointing out that “American citizenship is not a grant of

immunity to commit crimes in other countries with impunity,”

the dissent thinks our decision has the “remarkable effect of

enabling a court sitting in Washington, D.C., to block the

efforts of a foreign sovereign to make an arrest on its own

soil.” Dissenting Op. at 9. U.S. courts, of course, have no

authority to constrain the actions of Iraqi authorities. But in

this case the government concedes that Omar is in the custody

of United States officials, and Omar’s petition merely calls on

the district court to determine whether those officials are

complying with American law—an altogether unremarkable

action for a United States district court.

V.

In sum, neither Hirota nor the political question doctrine

deprives the district court of jurisdiction to entertain Omar’s

petition for a writ of habeas corpus. Because transfer would

not afford Omar all the relief he could obtain through a writ of

habeas corpus and because the district court’s preliminary

injunction properly preserves its jurisdiction to entertain his

petition, we affirm.

So ordered.

BROWN, Circuit Judge, dissenting in part: With only minor

hesitation,1 I join the majority’s analysis of the district court’s

jurisdiction over Omar’s habeas petition. But I disagree with the

majority’s view that, while the district court cannot enjoin

Omar’s release outright, it may indeed dictate the terms of his

release. Hence, I write separately to explain why I would vacate

the district court’s injunction.

I

This case reached us when the government appealed the

district court’s Order dated February 13, 2006. The sole

question before us, then, is whether that Order was proper. In

relevant part, it states as follows:

[It is] ORDERED that the motion for a preliminary

injunction is GRANTED, and it is

FURTHER ORDERED that the respondents, their

agents, servants, employees, confederates, and any

persons acting in concert or participation with them, or

having actual or implicit knowledge of this Order by

personal service or otherwise, shall not remove the

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

any other action inconsistent with this court’s memoran-

dum opinion.

1

To the extent the majority’s opinion might be read to imply

citizenship was one of the determinative factors in Hirota v.

MacArthur, 338 U.S. 197 (1948), I note the question remains open in

this circuit. Compare Flick v. Johnson, 174 F.2d 983, 984 (D.C. Cir.

1949) (focusing on conviction by a foreign tribunal as the hallmark of

Hirota without discussing citizenship), with Maj. Op. 9 (describing the

issue in Hirota as “the availability of habeas to non-citizens convicted

abroad by multinational tribunals”).

2

The Motion for a Preliminary Injunction referenced by the Order

was originally styled a Motion for a Temporary Restraining

Order, and it asked the court to prevent “the transfer of Shawqi

Omar to the authority of any other government, sovereign,

country, or agency until this Court has an opportunity to

consider and decide the merits” of Omar’s habeas petition.

The injunction, by its terms, grants the original Motion,

thereby barring Omar’s transfer to different custodians. The

injunction also explicitly instructs the respondents not to

“remove [Omar] from United States or MNF-I custody,” an act

necessary for his release.2 Finally, the discussion in the district

court’s memorandum opinion makes sense only if the court

further intended to proscribe Omar’s presentation before the

Central Criminal Court of Iraq (“CCCI”), even while he

remained in the custody of the United States or MNF-I. The

Order gives effect to this intention by enjoining “any other

action inconsistent with this court’s memorandum opinion.” In

summary, the injunction bars Omar’s transfer to a foreign

custodian, his outright release, and his presentation before the

CCCI while within United States or MNF-I custody.3

2

The majority interprets this instruction as covering transfer but

not release. Maj. Op. 19. Given such an interpretation, it is not clear

why the district court had to “FURTHER ORDER[]” that Omar not be

removed, when the court’s grant of Omar’s Motion for a Preliminary

Injunction already barred his transfer. However, since the majority

finds that an injunction against release was not intended, and I find

that it was intended but improper, we all agree that the United States

is free to release Omar from custody.

3

Indeed, as the government has recognized, the final portion of

this injunction effectively bars Omar’s prosecution by the CCCI, as

well. See Opp’n to Pet’rs’ Emergency Mot. for Injunctive Relief at

18-19, Munaf v. Harvey, No. 06-5324 (D.C. Cir. Oct. 25, 2006)

(“[Omar] has not yet had a trial or even an investigative hearing in the

3

II

In addressing the propriety of this injunction, I note first

that we heard arguments in this case on the portentous date of

September 11, 2006, precisely five years after the terrorist

attacks that so fundamentally altered this country’s attitude

toward security. No longer could we sit back and consider

ourselves safe from foreign enemies so long as no other nation

wished us harm. The Founders envisioned wars in the paradigm

of the time, with official declarations from heads of states

announcing the beginning and end of hostilities. In today’s

world, by contrast, global alliances of non-state actors can visit

death and destruction on the American homeland without

warning, on a scale equal to that seen in conventional wars. In

such an environment, it would be dangerous folly to deny what

this case involves: the capture of an alleged enemy combatant

by American military personnel operating in a war zone. It is in

this context that we must measure Omar’s likelihood of succeed-

ing in his habeas petition, the harm the injunction imposes on

the respondents, and the interest of the public in the case.4

CCCI due to the district court’s unprecedented injunction in that

case.”).

4

Were this an isolated case, the district court’s cavalier approach

to the difficult questions it presents would be less worrisome. But in

fact several related cases have recently come before this court, with

many more sure to follow. See, e.g., Al-Bandar v. Bush, No. 06-5425,

2006 U.S. App. LEXIS 32239 (D.C. Cir. Dec. 29, 2006) (non-citizen

seeking habeas after conviction in Iraq); Munaf, supra note 3 (U.S.

citizen seeking habeas after conviction in Iraq). The proper contours

of court jurisdiction in such cases remain unclear, as do the rights to

be accorded the petitioners on the merits. In such circumstances, this

court has a duty to provide clear guidance based on the cases

presented for its consideration.

4

While the test for preliminary injunctions is a flexible

one—a strong showing on the merits may compensate for a

relatively slight showing of irreparable injury—a petitioner must

nonetheless demonstrate “some injury.” CityFed Fin. Corp. v.

Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)

(internal quotation marks omitted) (quoting Population Inst. v.

McPherson, 797 F.2d 1062 app. at 1078 (D.C. Cir. 1986)).

Specifically, we ask whether the petitioner “would suffer

irreparable injury if the injunction is not granted.” Id. at 746.

Thus, if the injunction would not reduce the risk of the feared

injury—whether because the injury would not occur even absent

the injunction or because it would remain equally likely even

with the injunction in place—the injunction should not be

granted. In particular, when the feared injury is the loss of a

remedy the petitioner seeks from the courts, we must determine

whether the action to be enjoined would preclude or impair the

desired relief, and, if so, whether the petitioner is likely to obtain

that relief on the merits.

To state this rule is to demonstrate immediately that the

injunction should be vacated at least to the extent it operates to

bar Omar’s release. Release would provide Omar with all the

relief to which he might be entitled by way of his habeas

petition. While courts do have power to grant equitable habeas

remedies beyond mere release, Omar has demonstrated no

grounds whatsoever for such remedies. Equitable remedies

typically involve either an order to a custodian to ameliorate the

conditions of a petitioner’s detention, e.g., Miller v. Overholser,

206 F.2d 415 (D.C. Cir. 1953), or an order freeing a petitioner

from penalties resulting from conviction that persist beyond the

end of detention, e.g., Carafas v. LaVallee, 391 U.S. 234 (1968).

Release from detention trumps ameliorated detention, and Omar

has pointed to no statutory penalties that would persist after his

release. Cf. Lane v. Williams, 455 U.S. 624, 631-33 (1982)

(limiting the Carafas exception to “civil disabilities” imposed

5

on former detainees by operation of law). Thus, if Omar

prevails on his habeas petition, he would be released and

nothing more, and release at this early stage of the proceeding

would only accelerate that relief, not impair it. In such circum-

stances, the district court’s action blatantly violates the rule that

injunctions must be “narrowly tailored to remedy the harm

shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d

968, 977 (D.C. Cir. 1990).

Similarly, the bar on Omar’s presentation before the CCCI

while in United States custody is improper. Provided such

presentation does not hamper the ability of the government to

order Omar’s release should the district court rule in his favor,

it presents no impediment to relief Omar might receive. While

it might be argued that conviction by the CCCI would prevent

Omar’s release, 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 non-

reviewable adjudications. Cf. Hirota v. MacArthur, 338 U.S.

197, 197 (1948); Neely v. Henkel, 180 U.S. 109, 123 (1901).

Omar concedes the district court cannot enjoin his release,

see Appellees’ Br. 47, and his briefs before us barely address the

bar on his presentation before the CCCI. However, Omar

dedicates much more energy to his argument that the remaining

portion of the injunction—the bar on his transfer to a new

custodian—should be enforced. The propriety of this part of the

injunction is unquestionably the closest question before us.

If this portion of the injunction stands by itself, then the

government will be permitted to release Omar, but not to

transfer him to Iraqi control. But just how far may the courts go

in effectuating such an order? Because Omar seeks an

injunction against his transfer to Iraqi authorities, we have to

6

assume that the United States seeks to transfer him to Iraqi

authorities and that Iraqi authorities seek to gain custody.

Therefore, if the government simply releases Omar and allows

him to walk out of Camp Bucca, he might well find a dozen

armed Iraqi soldiers waiting for him. This possibility becomes

an inevitability if United States military officials notify Iraqi

authorities as to the exact time and place of Omar’s release,

thereby effectively ensuring his immediate recapture and

detention. The majority calls this reasoning speculative, but it

is precisely the sort of consideration of future likelihoods that is

required of a court when it weighs the propriety of preliminary

relief. CityFed, 58 F.3d at 746. In short, the practical effect of

Omar’s release with a tip-off to Iraqi authorities would be

indistinguishable from his formal transfer to those authorities.

Therefore, absent a limitation on intergovernmental

communication, an injunction against transfer will have no

significant effect on the likelihood of Omar’s detention by Iraq

subsequent to his release from United States custody.

But information sharing among sovereigns regarding the

location of persons subject to arrest is a common and desirable

practice, particularly in a situation like that in present-day Iraq,

where the United States military is cooperating with Iraqi

authorities to secure the country. Any judicial order barring this

sort of information sharing in a military zone would clearly

constitute judicial interference in a matter left solely to

Executive discretion and would hence be improper under the

political question doctrine. See Hamdi v. Rumsfeld, 542 U.S.

507, 531 (2004) (plurality opinion) (“Without doubt, our

Constitution recognizes that core strategic matters of warmaking

belong in the hands of those who are best positioned and most

politically accountable for making them.”); cf. Bancoult v.

McNamara, 445 F.3d 427, 436-37 (D.C. Cir. 2006); Schneider

v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005). Thus, the

courts are powerless to enjoin the United States from informing

7

Iraqi officials about the planned release of Omar, and under

these circumstances, an injunction against outright transfer is an

empty gesture that cannot be sustained. See CityFed, 58 F.3d at

746.

The majority recognizes the practical equivalence between

transferring Omar and “‘releasing’ him with a wink-and-a-nod

to the Iraqis,” Maj. Op. 22, but draws the opposite conclusion.

The majority’s logic proceeds as follows: (1) An injunction

barring transfer is permissible. (2) Unrestricted inter-

governmental communication could convert release into

transfer. (3) Therefore, federal courts must have the power to

limit intergovernmental communication, in order to give effect

to the main injunction against transfer. Summarizing its

position, the majority declares: “The United States may

certainly share information with other sovereigns . . . , but it may

not do so in a way that converts Omar’s ‘release’ into a transfer

that violates a court order.” Id. This is a striking conclusion.

The majority in effect holds that, in the proper circumstance, a

single unelected district court judge can enjoin the United States

military from sharing information with an allied foreign

sovereign in a war zone and may do so with the deliberate

purpose of foiling the efforts of the foreign sovereign to make an

arrest on its own soil, in effect secreting a fugitive to prevent his

capture. The trespass on Executive authority could hardly be

clearer.

III

To obtain injunctive relief, the moving party “must

demonstrate 1) a substantial likelihood of success on the merits,

2) that it would suffer irreparable injury if the injunction is not

granted, 3) that an injunction would not substantially injure

other interested parties, and 4) that the public interest would be

furthered by the injunction.” CityFed, 58 F.3d at 746. The first

8

two factors clearly favor the government here, and the district

court’s findings in favor of Omar on the remaining two factors

are dubious at best.

With regard to the first factor—Omar’s likelihood of

succeeding on the merits—we must first determine in what

sense he must be likely to succeed. It may be true that he is

likely to succeed on the merits if all he seeks from his habeas

petition is release with no additional protections, but then the

United States would be free to notify Iraqi officials of the time

and place of his release, effectively ensuring Iraqi detention.

Omar’s “success on the merits,” in that case, would be Iraqi

detention, and an injunction against transfer would not be

necessary. Therefore, to make an injunction against transfer to

Iraqi authorities a viable form of preliminary relief, Omar would

need to show some likelihood of obtaining permanent relief

protecting him from Iraqi custody. This remedy we might call

“release plus,” consisting of release combined with immunity to

Iraqi prosecution, release following surreptitious transport out

of Iraq, or release with a promise to conceal the time and place

of the release. But Omar has asserted no legal grounds

justifying such an extraordinary remedy, and even had he done

so, it would be beyond the court’s power to grant. Imposing

such conditions on Omar’s release would substantially interfere

with the Executive’s prerogative, especially in time of war.

Thus, the first factor favors the government.

In an attempt to show that the district court’s bar on Omar’s

transfer to the Iraqi authorities would indeed secure Omar’s

chance at some better outcome on the merits, the majority draws

an analogy between that injunction and garden-variety stays on

extradition. See Maj. Op. 20. As the majority notes,

“transferring a petitioner to the foreign country seeking

extradition is obviously not the same as releasing him.” Id. But

Omar is physically detained in Iraq. Therefore, transfer in this

9

context is not akin to extradition. Cf. Ntakirutimana v. Reno,

184 F.3d 419 (5th Cir. 1999); Then v. Melendez, 92 F.3d 851

(9th Cir. 1996). Rather, “transfer” here means simply allowing

Iraqi officials to arrest and take custody of a person who was

captured in Iraq and has remained there

continuously—something they undeniably have a right to do.

“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,” Wilson v.

Girard, 354 U.S. 524, 529 (1957),5 and American citizenship is

not a grant of immunity to commit crimes in other countries

with impunity, Neely, 180 U.S. at 123. As noted, the majority’s

holding has the remarkable effect of enabling a court sitting in

Washington, D.C., to block the efforts of a foreign sovereign to

make an arrest on its own soil. Where, as is true here, the

prisoner is physically in the territory of the foreign sovereign

that seeks to make the arrest, release is tantamount to transfer,

and thus the logic underlying stays on extradition does not

apply. The majority’s contrary view is comparable to a court

enjoining state authorities from lodging a detainer with respect

to a prisoner held in federal custody and then requiring the

federal prison officials to release the prisoner in a way that

protects the prisoner from state arrest. Such interference by a

5

To the extent the majority reads Girard as permitting in-country

transfer of an American service member to foreign custody only if a

treaty or similar international agreement provides for the transfer, see

Maj. Op. 16, the majority misreads that opinion. In Girard, the Court

did not describe any treaty or agreement providing for the transfer of

the detainee, and it would be odd to hold that a foreign sovereign

needs the authorization of an international agreement to take custody

of someone detained in its own territory or that the United States

needs such authorization to release the detainee in compliance with the

foreign sovereign’s wishes. Significantly, the Girard Court reversed

an injunction against transfer very much like the one at issue here.

Girard, 354 U.S. at 526, 530.

10

court in the decisions of sovereigns acting jointly within the

same territory is unprecedented. Cf. Floyd v. Henderson, 456

F.2d 1117, 1119 (5th Cir. 1972) (“[The state prisoner] could not

complain about being returned [from state custody] to federal

prison, because the question of jurisdiction and custody over a

prisoner is one of comity between governments and not a

personal right of the prisoner.”).

The second CityFed factor, the risk of “irreparable injury”

to Omar if the injunction is not granted, likewise favors the

government. Irreparable injury must be measured in terms of

the relief the litigant ultimately seeks, and as outlined above, the

preliminary injunction against transfer does not alter in any way

the likelihood Iraqi authorities will take Omar into custody if he

ultimately prevails on the merits of his petition and gains his

release from United States custody. Thus, the claimed

“irreparable injury” (Iraqi custody) is not different from the

most likely consequence of the relief Omar is pursuing. Only if

Omar is seeking not just release, but release with protection

from Iraqi custody, can he argue transfer to Iraqi authorities

poses a threat of irreparable injury. But as noted, Omar has not

established any legal basis for protection from Iraqi custody.6

It simply defies logic for a court to conclude Omar needs a

preliminary injunction to protect him from the consequences of

the relief he is ultimately seeking. Similarly, while the district

court treated loss of habeas jurisdiction as a second irreparable

injury, this is truly injurious only to the extent the exercise of

6

I do not make light of Omar’s assertion he will receive severe

treatment as a result of Iraqi detention. To recognize that our courts

lack the authority to dictate the actions of a foreign sovereign is not to

sanction human rights violations. As part of a tripartite system of

government, 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.

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jurisdiction might produce relief beyond release into Iraqi

custody, and (once again) no such additional relief could be

warranted.

The third factor queries the injuries other parties might

sustain as a result of the injunction. Here, the substantial

impairment to the Executive’s ability to prosecute the war

efficiently and to make good on its commitments to our allies

cannot be denied. Given the gravity of such impairment in these

troubled times, the third factor places much on the government’s

side of the ledger.

Finally, the fourth CityFed factor asks the district court to

weigh the balance of public interest. The same concerns raised

by the third factor apply here and render suspect a finding that,

in the present environment, the balance of public interest favors

limiting Executive discretion to transfer Omar.

The district court couched its analysis in terms of the

CityFed factors but followed an entirely different path. The

court did not address the merits of Omar’s underlying habeas

claim or discuss what relief would justify each portion of the

injunction. Rather, the court merely determined that it might

have jurisdiction over Omar’s habeas petition and then deemed

this possibility sufficient to satisfy the first CityFed factor.

Omar v. Harvey, 416 F. Supp. 2d 19, 23-28 (D.D.C. 2006).

Addressing the second factor, the court treated its potential loss

of jurisdiction as an irreparable injury without explaining how

its retention of jurisdiction could provide Omar with relief that

would somehow preclude his being taken into Iraqi custody. Id.

at 28-29. Even assuming deference requires us to uphold the

district court’s findings on the final two factors, see CSX

Transp., Inc. v. Williams, 406 F.3d 667, 670 (D.C. Cir. 2005), its

analysis of the first two is clearly erroneous, and its overall

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weighing of the CityFed factors represents an abuse of

discretion.

IV

I agree with the majority that the district court has

jurisdiction to entertain Omar’s petition for a writ of habeas

corpus. However, because each part of the district court’s

injunction—the bar on Omar’s release, the bar on his transfer to

a separate custodian, and the bar on his presentation before the

CCCI while he remains in United States or MNF-I custody—is

improper, I would vacate the injunction. Thus, in relation to

however much of the injunction the majority affirms, I must

respectfully dissent.