Petition for Writ of Certiorari — Geren v. Omar, 128 S. Ct. 741 (2007) (No. 07-394)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

“ul eo

07-394 SEP 21 2007

wo.) OFFICE OF THE CLERK

In the Supreme Court of the Gnited States

: nt =

nips * an “4

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

PETITIONERS

Vv.

SANDRA K. OMAR, ET AL. F

FF EAS, pad. onsets ios

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PET: SION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General

DOUGLAS N. LETTER

JONATHAN H. LEvy

LEWIS S. YELIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

Respondent, a dual American-Jordanian citizen, vo-

luntarily traveled to Iraq, allegedly committed serious

crimes there, was captured in an active combat zone by

members of an international military force (the Multi-

national Force-Iraq), and is being held under interna-

tional authority by United States military personnel act-

ing as part of that international military coalition and at

the request of the Iraqi government. The questions pre-

sented are as follows:

1. Whether the United States courts have jurisdic-

tion to entertain a habeas corpus petition filed on behalf

of an individual such as respondent challenging his de-

tention by the multinational force.

2. Whether, if such jurisdiction exists, the district

court had the power to enjoin the multinational force

from releasing respondent to Iraqi custody or allowing

respondent to be tried before the Iraqi courts.

(I)

PARTIES TO THE PROCEEDINGS

The petitioners are Pete Geren, Secretary of the United

States Army; William H. Brandenburg, Major General-

Deputy Commanding General (Detainee Operations); and

Timothy Houser, Lieutenant Colonel.

The respondents are Sandra K. Omar and Ahmed S.

Omar, acting as next friends of Shawqi Ahmad Omar.

(11)

Seer COT EY ee BE AN Girt, rake re ES ; et ae AT ey Nae

ee ee Pe Fee ee Pe) ERED SP pe) A ee Oe, ee RY POR EPeN NT aay ee A Oy gee

ST NA Re NEE LN Kee ig oO ter re SR Meme, Ly ee PP ROU Rg ey, ath! ee OE ee? Bee ey eee eee ee

: s ‘ta A Cs * De *& . - Fs f ee EA ee aE

TABLE OF CONTENTS

i ue bic wlpeisaaba

PE aa baer dp Waeee td Gik Chen vdbabeccyosestene

Reasons for granting the petition .................0-e eee

A. The court of appeals’ jurisdictional ruling

warrants this Court’s review ...................-

B. The court of appeals’ ruling upholding the

district court’s injunction warrants this Court’s

PI, Aoi AS Roe R OCR AAbK CHEWE NS NS es Fee scree

C. The Court should grant the petition in this case

and hold the petition in Munaf ..................

RE Se ether ain ink ewe wen nueseeehie

TABLE OF AUTHORITIES

Cases:

Abu Ali v. Ashcroft, 350 F. Supp. 2d 28 (D.D.C. 2004) ....

Al-Bandar v. Bush, 127 S. Ct. 854 (2007) .............

Flick v. Johnson, 174 F.2d 983 (D.C. Cir.), cert.

Gomled, SEB US. STO CIGD) occ ccc ccc cccccccccccns

Floyd v. Henderson, 456 F.2d 1117 (5th Cir. 1972) ......

r y —~ ot me S > ye me Se a O* Wvipted 2 Deas ‘\ Fm cr, * 2s . 7 ae a, - a iL >

Sd ee ek bees RG RAPES ee Y Ee Sip ow > Perey ily eee Be Le a Re er eta Pre No} ee Pa eae Se eb, ee Pe

we. Ces 3 nated . ates RS ee i POs eR ST tare ee nly ee IT My ey ee Se) POE See OL ET ol, epee Bee Fie Len tT xy PX oe Pia SN! iis Ba Ks Paar nes

: ; . rn ae a 2 . 3 a * 7 pos Sue eg pee eae eee

‘ Baio

&-,

(111)

ss ao asi a i YS a ck i gO i eB tad i a ki ak a te SO a a Ws ah og

4 Neo Ses es - y . 4 2 ? . tes x", Pat: 4 ~~ we

; ? c ‘ : . > *

Cases—Continued: Page

Hirota v. MacArthur:

I a ge 25

eee ere ree passim

Holmes v. Laird, 459 F.2d 1211 (D.C. Cir.), cert.

denied, 409 U.S. 869 (1972) ............. cee eeee 19, 20

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir. 1997) ..... 21

Munaf v. Geren, 482 F.3d 582 (D.C. Cir.), petition

for cert. pending, No. 06-1666 (filed June 13,

BEE BGK eae oRE IE ECR R ae an aceeks 15, 20, 26

Munaf v. Harvey, 456 F. Supp. 2d 115 (D.D.C. 2006),

aff’d, 482 F.3d 582 (D.C. Cir.), petition for cert.

F pending. No. 06-1666 (filed June 13, 2007) ........... )

2 Neely v. Henkel, 180 U.S. 109 (1901) ..........-. 13, 21, 28

3 Ramadan v. Bush, 127 S. Ct. 1512 (2007) ............. 14

4 Reid v. Covert, 354 U.S. 1 (1957) ............-0 eee eee 18

E Republic of the Philippines v. Westinghouse Elec.

: Corp., 43 F.3d 65 (3d Cir. 1994) .............0.2205- 23

9 Schooner Exch. v. M’Fadden, 11 U.S. (7 Cranch) 116

4 GA icc cavaeakiaria Peawbescedaeteces eye 18

4 Spencer v. Kemna, 523 U.S. 1 (1998) ............--.55- 16

4 United States v. Kin-Hong, 110 F.3d 103 (1st Cir.

_ SRSNERS ERE SASS TEST eee a or ey 21

Wilson v. Girard, 354 U.S. 524 (1957) ........ 11, 18, 20, 24

Treaty, resolutions and statute:

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12. 1949, Art. 5,6 U.S.T.

De eS nea eeesene 14

a Resolutions and statute—Continued: Page

a Res. 1546, U.N. SCOR, U.N. Doe. S/Res. 1546

Oh ee a

4 Res. 1637, U.N. SCOR, U.N. Doe. S/Res. 1637

3 (0005) ......... i aisha Se ws pancake ratte ea

a Res. 1723, U.N. SCOR, U.N. Doe. S/Res. 1723 (2006) . 2, 20

Authorization for Use of Military Force Against Iraq

4 Resolution of 2002, Pub. L. No. 107-243, 116 Stat.

a Fie ik vcs erties eee .. 20, 65a

q ? ° rt A

es os AP ee Or ee STA eT) eet ee eee ees ee era ay ee Le ee oe =

0 SE Sa Pee eter MOT My we APS WR SMT eR rg eee OPO PUT eS a aw, nn, Bey atenege Babs rae

BO PR ee Dy Manet, eS PET PO i ee, SOR eh ae OY Fey Aaa TP oe a a aD top ae ce Tere

In the Supreme Court of the Gnited States

No.

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

PETITIONERS

SANDRA K. OMAR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Secretary of

the Army and the other federal petitioners, respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

39a) is reported at 479 F.3d 1. The opinion of the dis-

trict court (App., infra, 40a-58a) is reported at 416 F.

Supp. 2d 19.

JURISDICTION

The judgment of the court of appeals was entered on

February 9, 2007. A petition for rehearing was denied

on May 24, 2007 (App., infra, 61a-62a). On August 15,

(1)

Me ee ee ee ea ee ee en Se Oe ee ere” ee c Gq oe»: 7 tink ete alee ge Sh. T

so es

oe. a

Fe ee PPE a Ogg Se ee SE Ce FOr ie EC a eg ane ES Ce LS DN ae MO ge ae WERE CE > ee eee we Sey

2007, the Chief Justice extended the time within which

to file a petition for a writ of certiorcri to and including

September 21, 2007. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent provisions are reprinted in the appendix to

this petition (App., infra, 65a-67a).

STATEMENT

1. a. The Multinational Force-Iraq (MNF-I) is an

internationally authorized entity consisting of forces

from approximately 27 nations, including the United

States. App., infra, 100a-101a. It operates in Iraq at

the request of the Iraqi government and under a United

Nations (U.N.) Security Council resolution authorizing

it “to take all necessary measures to contribute to the

maintenance of security and stability in Iraq.” Res.

4 1546, U.N. SCOR, at 4, U.N. Doe. S/Res. 1546 (2004).’

: The MNF-I is charged with, among other tasks, deter-

ee a ee ee Pee bar ie not Baie os een a Mae eee ee ON ease, ee ee -

> P ; = Per has of _ * o ——e = om ?, , ‘4 y 2 -

seal - on ct 5 Lee = ideas ,> “" sz te . van" ~~ «

A ? oe 2 8 to ey ee x Os « «

ring and preventing terrorism and detaining individuals

where necessary for imperative reasons of security.

App., infra, 85a. Pursuant to its U.N. mandate, the

MNF-I operates under the “unified command” of United

| States military officers, id. at 74a, but the multinational

: force is legally distinct from the United States, has its

own insignia, and includes high-ranking officers from

other nations (for example, the second in command is a

British officer).

. ' That authority is subject to periodic review and reconsideration by

é the U.N. Security Council. The Security Council extended the MNF-I's

: mandate through December 2006, see Res. 1637, U.N. SCOR, U.N. Doe.

‘ S/Res. 1637 (2005), and again through December 2007, see Res. 1723,

U.N. SCOR, U.N. Doc. S/Res. 1723 (2006).

ROT eS EN Ee LOE ee Tae

ie et ee ieee

. ee we Pes

iN Soe ef ee

> an A &

a) oP ee ee ee ee ee eee eee

b. The Central Criminal Court of Iraq (CCCI) is an

Iraqi court under Iraqi governance, staffed by Iraqi

judges who apply Iraqi law. App., infra, 104a. The

CCCI is divided into two chambers: an investigative

court and a felony trial court. /bid. The investigative

court conducts an investigative hearing, during which

witnesses present sworn testimony, to determine whe-

ther there is sufficient evidence to warrant a criminal

trial. bid. If the investigative court determines that

there is sufficient evidence to proceed, it forwards a re-

port to the trial court and recommends charges. /d. at

105a. The trial court sits in panels of three judges, who

review the evidence submitted by the investigative court

and may take additional evidence in formal proceedings.

Ibid. In both investigative and trial proceedings, a de-

fendant is entitled to be represented by court-appointed

counsel or counsel of his choosing. /d. at 105a-106a.

Under the authority of the U.N. Security Council

resolutions, the Government of Iraq and the MNF-I

have determined that the MNF-I should maintain physi-

eal custody of many individuals suspected of criminal

activity in Iraq pending investigation and prosecution in

Iraqi courts, because, inter alia, many Iraqi prison facil-

ities have been damaged or destroyed in connection with

the hostilities in Iraq. See App., infra, 106a.

2. Respondent is an American-Jordanian citizen who

voluntarily traveled to Iraq. See App., infra, 2a, 103a-

104a. In October 2004, he was captured by MNF-I

forces in a raid of his Baghdad home targeting associ-

ates of Abu Musab al-Zarqawi, the former Al-Qaeda

leader in Iraq. See ibid. When he was captured, re-

spondent was harboring an Iraqi insurgent and four Jor-

danian Jihadist fighters in his home. /d. at 101a-102a.

Upon their capture, the individuals seized with respon-

’ x ¥

ere.

a ’ a DP ah i bases te tI he ie ae pat ge 4 , : ar As + iytne i eae

Osh St ene ee Om A Ree eee Eee ee Te AL Oe ee ee ee rate eee hee ee

‘od Dae 5

el? or tS

=| + Se eg we ee OT OE eT eM ae ee ee ee See eee

f . : - fc

dent stated that, while living in his home in Baghdad,

they surveilled potential kidnap victims, conducted

weapons training, and engaged in other insurgent cell

activities. /d. at 102a. Those individuals, as well as re-

spondent, also explained that respondent planned to use 4

his fluency in English to entice foreigners to return to

his home where they could be kidnapped and ransomed.

Ibid. At the time of his capture, respondent had several

weapons and explosive-making materials in his home.

Id. at 103a.

Since his capture, respondent has remained in the

custody of members of the United States armed forces

operating as part of the MNF-I. See App., izfra, la. A

three-member MNF-I tribunal held a hearing at which

respondent was present and had the opportunity to hear

the charges against him, make a statement, and cal] wit-

PEE POS ee Fe See ee

nesses who were immediately available. /d. at 3a. The

, tribunal found that respondent was a security internee

: under the authority of the U.N. resolutions, i.e., that he

posed a threat to the security of Iraq, and that he was

4 also an enemy combatant in the war on terrorism. See

ibid.; id. at 103a. The MNF-I determined to refer res-

pondent to the CCCI for investigation and prosecution

for offenses committed in Iraq. That referral is consis-

tent with the manner in which the MNF-I has treated

other security internees being held by the MNF-I under

international authority. /d. at 3a-4a.

3. Before the MNF-I referred respondent to the

CCCI, this next-friend habeas corpus petition was filed

on his behalf. The district court issued a preliminary

injunction directing that “the respondents, their agents,

servants, employees, confederates, and any persons act- :

ing in concert or participation with them, or having ac-

tual or implicit knowledge of this Order by personal ser- |

abi etn Hateh:. TP hn eee ee te. TIPS RE a LS ee Oe

oi ~~

‘

;

vice or otherwise, shall not remove the petitioner from

United States or MNF-I custody.” App., infra, 59a.

The district court rejected the government’s conten-

tion that Hirota v. MacArthur, 338 U.S. 197 (1948) (per

curiam), controls the jurisdictional question here. App.,

infra, 47a-49a. In that decision, this Court held that

federal courts lacked habeas jurisdiction over petitions

filed by Japanese nationals convicted by a multinational

military court established by General Douglas MacAr-

thur acting “as the agent of the Allied Powers” and de-

tained in the custody of General MacArthur’s subordi-

nate in the United States Army. 338 U.S. at 198. Be-

cause General MacArthur and his military subordinates

were acting pursuant to international authority as part

of a multinational force, this Court determined that “the

courts of the United States ha[d] no power” to grant the

petitioners any habeas relief. /bid.

The district court also rejected the government’s

contention that constitutional separation-of-powers con-

siderations preclude the courts from adjudicating this

case. App., infra, 53a-54a. In the district court’s view,

regardless of the merits of those arguments, “doctrines

such as act of state, separation of powers and political

question, although important considerations, do not ‘ex-

tinguish[ ] the fundamental right of a citizen to challenge

his detention colorably alleged to be at the behest of the

executive.” bid. (quoting Abu Ali v. Ashcroft, 350 F.

Supp. 2d 28, 57 (D.D.C. 2004)).

Having concluded that it had authority to entertain

this habeas action, the district court entered an order

barring respondent’s release from MNF-I custody on

the ground that “any physical transfer of [respondent]

may prematurely moot the case or undo this court’s ju-

risdiction.” App., infra, 55a. Although the court recog-

nized that respondent’s “appearance before the CCCI

does not constitute an immediate transfer to the Iraqi

authorities,” the court nevertheless also barred the

MNF-I from presenting respondent for any proceedings

before the CCCI on the theory that respondent might be

“presented to the CCCI and in that same day, be tried,

convicted, and transferred to the CCCI’s jurisdiction.”

Id. at 56a; see id. at 59a-60a (order granting relief).

4. The court of appeals affirmed as to both the exis-

tence of jurisdiction and the propriety of the district

court’s injunction. App., infra, 1a-39a.

a. The court of appeals held that the district court

had jurisdiction over this habeas action. App., infra, 7a-

14a. It recognized that this case is like Hirota in that

respondent is being held “overseas” by a “multinational

force,” but it held that the basic jurisdictional limitation

established in Hirota for individuals held by multina-

tional forces acting under international authority does

not govern this case because respondent has not yet

been convicted by the Iraqi courts based on the criminal

offenses for which he is being held. /d. at 11a, 12a-13a.

The court of appeals likewise rejected the govern-

ment’s arguments that respondent’s challenge to his

detention and effort to block his transfer to Iraqi au-

thorities were not justiciable. App., infra, 15a-19a. The

court recognized that “the ‘rule of non-inquiry’ * * *

bars courts from investigating the fairness of a request-

ing nation’s justice system,” such as Iraq’s. Jd. at 19a

(citation omitted). But the court asserted that “since the

only question before us at this stage of the litigation

relates to the district court’s jurisdiction,” the rule of

non-inquiry “has no relevance” here. /bid.

A panel majority also upheld the district court’s in-

junction. App., infra, 19a-26a. Although the majority

_ ee Se ee re ee, “Sy eh a 4

recognized that the district court lacked the authority to

enjoin respondent’s outright release, id. at 20a, the ma-

jority nonetheless concluded that the district court prop-

erly enjoined respondent’s transfer to Lraqi custody, his

release accompanied by information sharing with the

Iraqi government that would enable Iraq to arrest re-

spondent upon his release, and his prosecution by the

Iraqi courts. /d. at 20a, 23a, 25a. The court reasoned

that such steps were warranted to preserve the district

court’s jurisdiction to consider the legality of any trans-

fer of respondent to Iraqi custody. /d. at 23a.

b. Judge Brown dissented. App., infra, 27a-39a.

She joined the panel’s threshold ruling on jurisdiction,

but “disagree[d] with the majority’s view that, while the

district court cannot enjoin [respondent’s] release out-

right, it may indeed dictate the terms of his release.” Jd.

at 27a. Because “[rjelease would provide [respondent]

with all the relief to which he might be entitled by way

of his habeas petition,” Judge Brown would have vacated

the injunction in its entirety. /d. at 30a, 39a.

Judge Brown explained that “to make an injunction

against transfer to Iraqi authorities a viable form of pre-

liminary relief, [respondent] would need to show some

likelihood of obtaining permanent relief protecting him

from Iraqi custody.” App., infra, 35a. Respondent

could not make that showing, however, because “‘trans-

fer’ 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.” /d. at 35a-36a.

Judge Brown reasoned that, especially because Iraq

has the “exclusive jurisdiction to punish offenses against

its laws committed within its borders,” a United States

court cannot “enjoin the United States military from

sharing information with an allied foreign sovereign in

a warzone * * * 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.” App., infra, 34a, 36a. “Any jadicial order bar-

ring this sort of information sharing in a military zone,”

Judge Brown explained, “would clearly constitute judi-

cial interference in a matter left solely to Executive dis-

cretion and would hence be improper under the political

question doctrine.” Jd. at 33a.

Judge Brown concluded that the injunction upheld

by the panel majority constitutes an “unprecedented”

interference “in the decisions of sovereigns acting

jointly within the same territory,” amounts to a clear

“trespass” on Executive authority, and imposes a “sub-

stantial impairment to the Executive’s ability to prose-

cute the war efficiently and to make good on its commit-

ments to our allies.” App., infra, 34a, 36a-37a, 38a.

c. The court of appeals denied petitioners’ petition

for rehearing en banc. App., infra, 63a-64a. Two judges

would have granted the petition. /bid.

REASONS FOR GRANTING THE PETITION

This case raises questions of exceptional importance

concerning the separation of powers, the Nation’s con-

duct of foreign and military affairs, and the sovereign

prerogative of foreign nations to try individuals for the

commission of criminal offenses within their own bor-

ders. The court of appeals upheld the exercise of juris-

diction over a habeas petition filed on behalf of an indi-

vidual being held by a multinational force operating

overseas in a theater of active hostilities pursuant to a

U.N. mandate and at the request of the local foreign

sovereign. By a split decision, the court of appeals also

held that the existence of such jurisdiction empowers

the United States courts to enjoin the multinational

force from releasing the individual to the custody of the

local foreign sovereign and even to prevent the foreign

sovereign from prosecuting the individual for criminal

offenses committed within its own borders. As far as the

governmer.. is aware, no court has previously sanctioned

such a far-reaching and internationally unsettling exer-

cise of American judicial power.”

In reaching that unprecedented result, the court of

appeals misconstrued this Court’s decision in Hirota v.

MacArthur, 338 U.S. 197 (1948) (per curiam). Hirota

establishes that United States courts lack jurisdiction to

review the detention of individuals held abroad pursuant

to internationai authority, including individuals held by

United States forces acting under American command

as part of a multinational force. The court of appeals

confined Hirota’s jurisdictional rule to situations in

which an individual has already been criminally con-

victed by a foreign tribunal. But that “criminal convic-

tion” limitation does not square with the rationale of

Hirota and, as the injunction at issue underscores, cre-

ates a perverse incentive for United States courts to

interfere with the exercise of criminal jurisdiction by

foreign sovereigns earlier rather than later in order to

“preserve[]” (App., infra, 27a) the jurisdiction of the

United States courts.

* See Munaf v. Harvey, 456 F. Supp. 2d 115, 130 (D.D.C. 2006),

aff’d, 482 F.3d 582, 584 (D.C. Cir. 2007) (“{N Jo court in our country’s

history, other than {in the Omar case], has ever found habeas jurisdic-

tion over a multinational force comprised of the United States acting

jointly with its allies overseas.”), petition for cert. pending, No. 06-1666

(filed June 13, 2007).

: RY

PAE EE RY re eC oo! Ey Ne TEEPE See Ne cy te Cee ee

PP er ae ae OTe Pe mee Ne |

ee Ga aay *

“a

Although respondent is a citizen, it bears emphasis

that the court of appeals fashioned a “criminal convic-

tion” limitation on H7rota, rather than relying on respon-

dent’s citizenship in finding jurisdiction over this action.

Although (as Justice Douglas recognized in his concur-

ring opinion) the rationale of Hirota does not lend itself

to a citizenship exception, see 338 U.S. at 202-203, 205,

limiting Hirota to non-citizens would produce a less dra-

matic result than that reached by the court of appeals.

The court of appeals’ “criminal conviction” rule is not

tied to citizenship and thus could have significant conse-

quences as to the detention of aliens held abroad by mul-

tinational forces operating under international author-

ity. That prospect magnifies the importance of the

threshold jurisdictional question.

Furthermore, even if jurisdiction exists, a writ of

certiorari is warranted to review the legitimacy of the

district court’s exercise of that jurisdiction by granting

its unprecedented injunction against respondent’s trans-

fer to Iraqi authorities to answer for criminal conduct

within Iraq’s own borders. That injunction overrides

the determinations of a multinational force acting pursu-

ant to authority derived from the United Nations at the

request of Iraq; interferes with the United States’ inter-

national commitments to the United Nations, the other

countries comprising the multinational force, and the

Government of Iraq; intrudes on [raq’s sovereign inter-

est in prosecuting serious criminal offenses committed

within it own territory; and impedes the fundamental

mission of the multinational force to help secure Lraq

and establish the legitimacy of vital governmental insti-

tutions in Iraq, including its courts.

As Judge Brown observed, under the decision in this

case, “a single unelected district court judge can enjoin

iy - a) - 7 2 ‘. .

ge a ee ee Cee ge a Oe, ee ee Fae aCe. be ae ea et

yt Nae. epee eS

FOE NE, Me ET Pa Rey te AD ge ihe ea EN

ere Se

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.”

App., infra, 34a. “Such interference by a court in the

decisions of sovereigns acting jointly within the same

territory” not only is “unprecedented,” id. at 36a-37a,

but constitutes a “substantial impairment to the Execu-

tive’s ability to prosecute the war efficiently and to make

good on its commitments to our allies,” id. at 38a, con-

travenes this Court’s precedent, e.g., Wilson v. Girard,

354 U.S. 524, 529 (1957), and warrants this Court’s re-

view.

A. The Court Of Appeals’ Jurisdictional Ruling Warrants

This Court’s Review

1. The threshold jurisdictional question presented

by this habeas action is governed by Hirota. That deci-

sion addressed petitions for writs of habeas corpus filed

by Japanese citizens convicted by a multinational mili-

tary court established by General Douglas MacArthur

acting “as the agent of the Allied Powers,” and detained

in the custody of General MacArthur’s subordinate in

the United States Army. Hirota, 338 U.S. at 198; see id.

at 199 (Douglas, J., concurring). Because this Court was

“satisfied that the tribunal sentencing these petitioners

[was] not a tribunal of the United States,” it held that

“the courts of the United States ha[d] no power” to adju-

dicate the habeas petitions. /d. at 198.

The Court recognized that although General MacAr-

thur was a United States military officer, Hirota, 338

U.S. at 207 (Douglas, J., concurring), he was “acting as

the Supreme Commander for the Allied Powers” and the

military tribunal at issue was “set up by General MacAr-

“4

APRS ae Pe ey) Eee ATT Phe nae Peay ee TT

;

thur as the agent of the Allied Powers.” /d. at 198. Ge-

neral MacArthur’s authorization to establish the tribu-

nal came from the Far Eastern Commission, an interna-

tional body composed of representatives from 11 na-

tions. Jd. at 206 (Douglas, J., concurring).

The basic teaching of Hirota calls for dismissal of

this action. In both cases, the habeas petitioners were

in the physical custody of United States military offi-

cers, but those officers acted as part of a multinational

force under international authority. While the United

States is certainly a vital component of the MNF-I, that

was no less true of the United States forces operating as

part of the Allied Powers in Japan. See Hirota, 338 U.S.

at 207 (Douglas, J., concurring). Here, the United Na-

tions, the United States, and the 26 other nations parti-

cipating in the multinational force all view the MNF-I as

having a distinct identity from the forces of any particu-

lar nation. The courts below did not identify any basis

to countermand that judgment and disregard the MNF-

I’s international origin and authority.”

* The court of appeals stated that “the government concedes * * *

that [U.S.] forces operate ‘subject to’ no independent MNF-I author-

ity.” App., infra, 14a-15a. It is not clear what the court intended by

that statement. As the government has made clear throughout this liti-

gation, however, the MNF-I is an international entity distinct from the

United States and, while the MNF-I is under unified American com-

mand, the same was true of the multinational force in Hirota. See, e.g.,

Pet. C.A. Br. 5-6, 30; Gov’t C.A. Reply Br. 5-6; 9/11/2006 Oral Arg. Tr.

10-11. Indeed, the government specifically explained that it would “mis-

characteriz|e]|” the government's arguments to say that U.S. forces do

not operate “subject to * * * multi-national authority.” /d. at 20-21. In

any event, the cuurt of appeals explicitly recognized that this case is like

Hirota in that respondent is detained abroad by a “multinational force.”

App., infra, lla.

‘

“™

;

Ea ee Se Ta POE Sa ee Pate Pe cen

2. The court of appeals acknowledged that this case

is like Hirota in that it involves the detention of an indi-

vidual “overseas” by a “multinational force.” App., in-

fra, lla. But the court reasoned that “the critical factor

in Hirota was the petitioners’ convictions by an interna-

tional tribunal,” and it distinguished this case on the

ground that respondent has not yet been convicted of a

crime by an international or foreign tribunal. Jd. at 12a.

The court of appeals’ focus on the existence of a criminal

eonviction—rather than the source of authority under

which an individual is held by a multinational force—is

inconsistent with Hirota’s basic reasoning. Indeed,

shortly after Hirota was decided, the District of Colum-

bia Circuit itself recognized that the key to Hirota’s

jurisdictional rule is the “source of [the] power” pursu-

ant to which an individual is held. Flick v. Johnson, 174

F.2d 983, 984, cert. denied, 338 U.S. 879 (1949). Respon-

dent here, like the petitioners in Hirota, is being held

under international authority.

The court of appeals asserted that the fact of a con-

viction is dispositive because it means that “some form

of judicial process has occurred.” App., infra, 13a. But

the fact that Hirota is silent as to what process the peti-

tioners received completely belies the court of appeals’

view that the form of judicial process animated this

Court’s decision in Hirota. 338 U.S. at 197-198. More-

over, limiting Hirota’s jurisdictional rule to individuais

who have received a certain degree of process before an

international authority would contravene this Court’s

decisions instructing that United States courts may not

second guess the adequacy of the criminal process af-

forded by international or foreign tribunals. See Neely

v. Henkel, 180 U.S. 109, 123 (1901); pp. 20-21, infra.

More fundamentally, the degree of process received—

;

aoe ee wee eae

veh ee oe eee fe Se

;

}

‘

OF ee ee ae Age PS opr a rene eens Pee ee

eA a

CL, Oe ee ee ea ee

we ee 8

whatever its impact on the merits—has nothing to do

with the existence of jurisdiction. On the other hand,

the determination whether a prisoner is in custody un-

der the authority of the United States, or of a multina-

tional entity, goes directly to the question of jurisdic-

tion.

The court of appeals based its ruling on the absence

of a criminal conviction, and not on respondent’s United

States citizenship. App., infra, 12a-14a. Although (as

Justice Douglas observed) the reasoning of Hirota ap-

plies to citizens as well as aliens, see 338 U.S. at 201-

202, 205, a ruling limited to the relatively unusual cir-

cumstance of a citizen detained by an international force

would have a reduced practical impact. The fact that

the court of appeals’ “criminal conviction” limitation on

Hirota does not distinguish between aliens and citizens

provides an additional basis for review, because it mag-

nifies the potential practical effect of the decision.®

* In any event, respondent received substantial process from the

MNF-I tribunal that found that he was a security internee: he had the

right to be present before that tribunal, hear the charges against him,

make a statement, and call witnesses who were immediately available.

App., infra, 3a. That hearing was modeled on, and exceeded, the pro-

cedures established by Article 5 of the Geneva Convention Relative to

the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3322, 75

U.N.T.S. 140. See App., infra, 103a. Accordingly, respondent has re-

ceived all the process called for by the law of war, including the Third

Geneva Convention, for an individual being detained during an ongoing

conflict as a security threat.

* Most individuals who have been held by the MNF-I are not United

States citizens and several such individuals have already filed habeas

petitions seeking injunctive relief prohibiting the MNF-I from trans-

ferring them to Lraqi custody. See, e.g., Ramadan v. Bush, 1278S. Ct.

1512 (2007) (No. 06A894) (application for injunction pending appeal

denied by the Court), No. 07-5078 (D.C. Cir.) (motion for injunction

pending appeal denied on Mar. 15, 2007), No. 07-297 (D.D.C.) (habeas

ot ae ae eee ts « ‘ po, Ppa baw

_Y Re eS ER Ee ATCT ONS eee eee

SR Pe ees ee aki Pon

Ce gk ee OD Ee OR ES LT ee ge ee Nate gt EN, i ee ON Ea

PEL MERAY SLE Ty Sete ee PUNE Leon Seem ey ee ON Re ed Ee oN ee, ee a eee EN ae Bee. ,

3. The dichotomy created by the court of appeals’

rule between cases in which international convictions

have already been entered, and those in which they have

not, raises grave comity concerns: Under the District of

Columbia Circuit’s approach. the existence of United

States jurisdiction depends on how far criminal proceed-

ings have progressed before an international tribunal.

United States courts lack jurisdiction over habeas peti-

tions that are filed on behalf of individuals (including

citizens) who have already been convicted by an interna-

tional or foreign body, see Munaf v. Geren, 482 F.3d

582, 584 (D.C. Cir.) (affirming dismissal of habeas peti-

tion brought by individual held by MNF-I following his

conviction by CCCI), petition for cert. pending, No. 06-

1666 (filed June 13, 2007), but have jurisdiction to enter-

tain actions that are filed before foreign proceedings

have reached that stage. What is more, under the court

of appeals’ decision, when such jurisdiction exists,

United States courts may exercise it to prevent criminal

petition dismissed for lack of jurisdiction under Hirota on Feb. 27,

2007); Al-Bandar v. Bush, No. 06A644 (application for injunction pen-

ding appeal denied by the Chief Justice on Jan. 3, 2007), 127 S. Ct. 854

(2007) (re-filed application referred by Justice Stevens to the Court

denied), No. 06-5425 (D.C. Cir.) (application for injunction pending

appeal denied on Dec. 29, 2006) (motion for en banc reconsideration of

denial of injunction denied on Jan. 3, 2007), No. 06-2209 (D.D.C.)

(motion for temporary restraining order denied and habeas petition dis-

missed for lack of jurisdiction under Hirota on Dec. 28, 2006); Jn re

Hussein, Misc. No. 06-566 (D.C. Cir.) (motion for injunction denied and

habeas petition denied for lack of jurisdiction under Hirota on Dec. 29,

2006). While those petitioners had been convicted by a foreign tribunal

before initiating their habeas actions, it is reasonable to assume, espe-

cially in the wake of the court of appeals’ decision in this case, that

foreign nationals detained by the MNF-I who have not yet been convic-

ted by a foreign tribunal will file habeas actions in the United States

courts.

Ty Pern, at eo Te

0 eee

ce I yee en ee wt LN CRASS Oe Ae OT IE Tee A Naeem Re rae Pe ee See eee ee

% 4 , Pe ae Oh ra es ee

; -

proceedings before the foreign tribunal under the aus-

pices of preserving their own habeas jurisdiction. App.,

infra, 55a. As this case illustrates, the court of appeals’

jurisdictional rule therefore invites the United States

courts to interfere with the criminal prosecution of indi-

viduals before foreign tribunals.

B. The Court Of Appeals’ Ruling Upholding The District

Court’s Injunction Warrants This Court’s Review

Because the court of appeals held that it possessed

jurisdiction over this habeas action, this case presents

a second—and complementary—question concerning

the limits on the appropriate exercise of such jurisdic-

tion. That question is of fundamental importance and

likewise necessitates this Court’s review. Indeed, the

divided court of appeals held that—in order to “pre-

serve[]” its jurisdiction over this action, App., infra, 23a,

26a-27a—the district court had the power to enjoin the

multinational force from transferring respondent to

Iraqi custody, sharing with the Iraqi government details

concerning any decision to release respondent, and al-

lowing respondent to appear before the Iraqi courts to

answer for alleged crimes committed in Iraq. /d. at 20a,

23a, 25a. That ruling disregards the traditional limits

on habeas relief, conflicts with this Court’s precedent

recognizing that foreign sovereigns have exclusive juris-

diction to try and punish individuals for offenses com-

mitted within their borders, and impermissibly intrudes

on the Executive’s military and foreign policy powers.

1. Asa matter of traditional habeas principles, the

district court correctly recognized that respondent’s re-

lease would moot his habeas petition and deprive the

court of whatever jurisdiction it had. App., infra, 55a;

see Spencer v. Kemna, 523 U.S. 1 (1998) (habeas chal-

oA eet

“e " “>> > * a ”"

thts! aS wile in a aha ees,

er i eee Nee eee a. te

atl PO ee ete ak o./ Shee o

me, tele ART ee ee mee ee

Pe / - . F

Be at, ob i Od ta oe Sr a ae Eh

obra

5 >

‘

jp ast pes a ate 2 Oe Ne i ee aT Wen, tb ae

: Pe * :

TGS OE Rete EEE Eee et Ny PI Ae CR ke OTS Bia, Men, Per aie ae Ae Ry Py

lenge to parole violation moot once prisoner released).

While the district court purported to enjoin respon-

dent’s release from MNF-I custody in order to prevent

the case from becoming moot, the court of appeals cor-

rectly recognized that it could not do so. App., infra,

20a, 55a. Release from custody is the essential remedy

secured by habeas and part of the relief sought by re-

spondent. C.A. App. 17. Article III does not permit the

courts to prolong artificially a case or controversy by

enjoining a party from providing the requested relief.

Despite its correct recognition of the limi‘» on relief, the

court of appeals upheld extraordinary restrictions on

the handling of a security internee abroad that are no

more justifiable than the district court’s ban on respon-

dent’s outright release.

a. There is no legal basis for enjoining the MNF-I

from transferring respondent—within Iraq—to Iraqi

custody. As Judge Brown recognized, respondent’s

transfer to Iraqi authorities would not be an extradition,

because respondent traveled to Iraq voluntarily and has

been within the sovereign territory of Iraq at all rele-

vant times. App., infra, 35a. Moreover, “[w]here, as is

true here, the prisoner is physically in the territory of

the foreign sovereign that seeks to make the arrest, re-

lease is tantamount to transfer, and thus the logic un-

derlying stays on extradition does not apply.” Jd. at

36a. The court of appeals did not attempt to identify a

legal basis for blocking respondent’s transfer to Iraqi

custody. Instead, the court reasoned that it is an open

question whether the United States would need treaty

or statutory authorization to transfer respondent within

Iraq to Iraqi custody, and then refused to consider that

question in upholding the district court’s injunction on

OT a a St Se ee

_@ s i a |

r) 4

awa ae ey ee Ae QD eer ee eS.

transfer. Jd. at 25a. That ruling is mistaken and con-

flicts with this Court’s precedent.

This Court has long recognized that a “sovereign

nation has exclusive jurisdiction to punish offenses

against its laws committed within its borders, unless it

expressly or impliedly consents to surrender its jurisdic-

tion.” Wilson v. Girard, 354 U.S. 524, 529 (1957); see

Reid v. Covert, 354 U.S. 1, 15 n.29 (1957) (plurality opin-

ion) (“[A] foreign nation has plenary criminal jurisdic-

tion, of course, over all Americans * * * who commit

offenses against its laws within its territory.”); Schooner

Exch. v. M’Fadden, 11 U.S. (7 Cranch) 116, 136 (1812)

(Marshall, C.J.) (“The jurisdiction of the nation within

its own territory is necessarily exciusive and absolute.”).

A foreign sovereign’s “plenary” authority (Reid, 354

U.S. at 15 n.29) is not just the power to punish after con-

viction; it is also the power to arrest a suspect within its

own sovereign territory, charge that suspect, and try

that suspect in its courts.

In Wilson, this Court reversed a district court in-

junction against the transfer of an American soldier (Gi-

rard) serving in Japan from the custody of the United

States Army to Japanese authorities in Japan to face

trial for the alleged shooting of a civilian during a train-

ing exercise. 354 U.S. at 525-526. The Court held that

Japan has “exclusive jurisdiction to punish offenses

against its laws committed within its borders, unless it

expressly or impliedly consents to surrender its jurisdic-

tion.” /d. at 529. Because Japan had not surrendered

that jurisdiction, a unanimous Court found “no constitu-

tional or statutory barrier” to the Army’s transfer of

Girard to Japanese authorities to face trial. Jd. at 530.

Because Iraq has not surrendered its jurisdiction over

criminal offenses committed within Iraq, and because

PN ae REA Sy ee Sa Sy lyre e~s

ae pp See Ce pe Pee

;

‘

there is no treaty or statute that bars his transfer to

Iraqi authority, Wilson controls here and requires that

the injunction on transfer be set aside.°

Indeed, this case presents a more compelling situa-

tion than Wilson for setting aside the injunction on re-

spondent’s transfer to Iraqi authorities to answer for his

conduct within Iraq. Unlike Girard, who was stationed

in Japan when he committed the alleged offense, re-

spondent voluntarily traveled to Iraq and committed

alleged criminal offenses there. Moreover, unlike Gi-

rard, respondent was apprehended by a multinational

force in a foreign combat zone, and bringing him to jus-

tice in Iraqi courts implicates vital military and foreign

relations matters. Respondent was captured in an ac-

tive combat zone and while harboring an Iraqi insurgent

and four Jordanian fighters and while possessing weap-

ons and Improvised Explosive Device-making materials.

See App., infra, 103a. The decision to detain respon-

dent was made for the safety and security of MNF-I

troops in lraq, as well as for the safety and security of

the government and people of Iraq, and any decision to

transfer respondent to Iraqi authorities to face trial

would be consistent with the MNF-I’s U.N. mandate

to protect and assist [raq’s government institutions—

including its criminal justice system.’

° Far from there being a statute or treaty barring respondent's

transfer to Iraqi authorities, existing United States law and U.N. obli-

gations positively authorize such a transfer. See note 8, infra.

’ The court of appeals’ decision upholding the injunction is also at

odds with the District of Columbia Circuit’s prior decision in Holmes v.

Laird, 459 F.2d 1211, cert. denied, 409 U.S. 869 (1972). In that case,

American servicemen were convicted by German courts for criminal

offenses in Germany, then returned to the United States and filed an

action seeking “an injunction restraining the American military from

me pw om

ba *

Ne ;

There is no dispute that the MNF-I forces who ap-

prehended respondent could have immediately handed

him over to Iraqi authorities without approval by a court

in the United States. The fact that a habeas petition has

been filed on behalf of respondent does not deprive the

MNF-I of its discretion to transfer respondent to the

custody of Iraq. Nor does it in any way diminish Iraq’s

“exclusive jurisdiction to punish offenses against its

laws committed within its borders.” Wilson, 354 U.S. at

529.

Nor can the injunction be sustained based on allega-

tions that respondent may be deprived of due process by

Iraqi authorities. As this Court long ago held, “[wJhen

an American citizen commits a crime in a foreign coun-

surrendering them to [German authorities].” Jd. at 1214. Citing, inter

alia, separation-of-powers concerns, see id. at 1215-1217, the court

held that “the contemplated surrender * * * is a matter beyond the

purview of this Court,” id. at 1225. This case presents an even stronger

case for such judicial restraint because respondent, unlike the plaintiffs

in Holmes (who had returned to the United States before filing suit

seeking to enjoin their transfer), remains in the foreign country where

he was captured and charged with criminal conduct. Although an intra-

circuit conflict ordinarily does not warrant certiorari, because most if

not all habeas petitions raising the sort of international concerns

implicated by this case have been filed in the District of Columbia

Circuit, the conflict with Holmes is pertinent here.

* The authority of United States forces to operate in Iraq, and to hold

security internees on behalf of the Government of Iraq, necessarily

includes any authority needed to transfer detainees to Iraqi authorities.

That is particularly true where, as here, such a transfer would be carry-

ing out a U.N. mandate and at the request of the Government of Iraq.

See Munaf, 482 F.3d at 586 (Randolph, J., concurring in judgment)

(citing Authorization for Use of Military Force Against Irag Resolution

of 2002, Pub. L. No. 107-243, 116 Stat. 1498; Res. 1637, U.N. SCOR,

U.N. Doc. S/Res. 1637 (2005); and Res. 1546, U.N. SCOR, U.N. Doc.

S/Res. 1546 (2004)).

Oe ee ee eS ee ee ee Bae ee EN Pe ee le me Ey Sa

7 ~4¢

er cere OS RA Ee SST

;

try, he 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, unless a

different mode be provided for by treaty stipulations

between that country and the United States.” Neely,

180 U.S. at 123. Even in the extradition context, there-

fore, “under what is called the ‘rule of non-inquiry’

* * * courts in this country refrain from examining the

penal systems of requesting nations, leaving to the Sec-

retary of State determinations of whether the defendant

is likely to be treated humanely.” Lopez-Smith v. Hood,

121 F.3d 1322, 1327 (9th Cir. 1997); see United States v.

Kin-Hong, 110 F.3d 1038, 110-111 (1st Cir. 1997). The

separation-of-powers concerns embodied in the rule of

non-inquiry are even stronger here than in the typical

extradition case because respondent is already volun-

tarily in Iraq, and the United States is working closely

with the Government of Iraq to restore order to that

country, in part by working to build respect for Iraq’s

vital governmental institutions, including its courts.”

Significantly, the court of appeals declined to con-

sider the government’s arguments on this point, consid-

ering them irrelevant to the courts’ jurisdiction. App.,

infra, 19a. But the court of appeals affirmed the district

court’s injunction as well as its jurisdictional finding,

and in doing so it simply ignored the relevance of those

arguments to respondent’s likelihood of success on the

* Tobe clear, the United States would object tothe MNF-I’s transfer

of respondent to Iraqi custody if it believed that he would be tortured.

Under the rule of non-inquiry discussed above, however, that is funda-

mentally a foreign affairs determination, based in part on the Execu-

tive’s assessment of the foreign country’s legal system and the Execu-

tive’s ability to obtain assurances it considers reliable. See App., infra,

37a n.6 (Brown, J., dissenting).

merits of his challenge t« a potential transfer to Iraqi

custody. Thus, the court of appeals affirmed the district

court’s unprecedented injunction against respondent’s

transfer only by assuming, incorrectly, that respondent

could prevail on the merits of such a challenge.

b. The other aspects of the district court’s unprece-

dented injunction are even more problematic under the

principles discussed above and underscore the extent to

which the courts have intruded on core Executive re-

sponsibilities and international comity. In addition to

blocking respondent’s transfer to Iraqi custody, the

court of appeals ruled that the MNF-I may not release

respondent after providing Iraqi authorities with infor-

mation that would enable them to arrest respondent

upon his release. App., infra, 22a-23a. However, as

Judge Brown observed, “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 authori-

ties to secure the country.” Jd. at 33a."

Under the court of appeals’ decision, the MNF-I

could evidently release respondent in Iraq only if it gave

him a head start before notifying Iraqi authorities that

” As Judge Brown explained, the district court’s injunction also

conflicts with the traditional practice in the domestic context. The

injunction at issue “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.” App.,

infra, 36a. Even in the domestic context, “[s]uch interference by a

court in the decisions of sovereigns acting jointly within the same

territory is unprecedented.” /d. at 36a-37a (citing Floyd v. Henderson,

456 F.2d 1117, 1119 (5th Cir. 1972)). Such interference is, of course, all

the more unwarranted in the foreign and military context of this case.

it had released someone that those authorities believed

to be a dangerous criminal. As Judge Brown noted, the

upshot of the court of appeals’ decision is therefore that

“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 clear-

er.” App., infra, 34a.

Significantly, however, United States courts lack

authority to interfere with the efforts of a foreign sover-

eign to arrest an individual within its territory who had

voluntarily traveled there. See Republic of the Philip-

pines v. Westinghouse Elec. Corp., 43 F.3d 65, 79 (3d

Cir. 1995). “When an American citizen commits a crime

in a foreign country he cannot complain if required to

submit to such modes of trial and to punishment as the

laws of the country may prescribe for its own people.”

Neely, 180 U.S. at 123. That concern is especially pro-

nounced here, where the MNF-I detained respondent

precisely because he is a confirmed security threat in an

active combat zone. Simply releasing him in an area of

ongoing conflict, without advance notice to the local sov-

ereign, could have grave diplomatic and practical conse-

quences. Even if the injunction against respondent’s

transfer were sustainable, therefore, the injunction

against communication among sovereigns concerning a -

potential arrest by Lraqi authorities in Iraq would re-

main an impermissible intrusion on the Executive’s war

powers and fo: _ _.n affairs responsibilities, as well as on

Iraq’s sovereignty.

a att, Sd Chas faite Soe , ae 2s ‘ 2) Oa Se

OF ee a ee g? CET ee! Ot a Se eee ae aN

ae. i

«e

’

The court of appeals compounded its error by direct-

ing that respondent not be brought before the CCCI for

trial, even if he remained in MNF-I custody. App., in-

fra, 25a. Even if the United States courts could prevent

Iraq from assuming custody of respondent, there would

be no justification for preventing the Iraqi courts from

adjudicating respondent’s guilt or innocence while he

remained within the custody of the MNF-I. As long as

respondent remains in MNF-I custody, the jurisdiction

of the United States courts (if any) to review that cus-

tody would be unaffected. The court of appeals’ un-

founded speculation that Iraq might seize respondent

from the MNF-I, id. at 25a-26a, is refuted by the govern-

ment’s declaration explaining that he would remain in

MNF-I custody during proceedings before the CCCI,

id. at 106a, and in any event provides no basis for inter-

fering with a foreign sovereign’s “exclusive jurisdiction

to punish offenses against its laws committed within its

borders.” Wilson, 354 U.S. at 529.

2. While the injunction at issue suffers the specific

defects discussed above, it likewise runs afoul of the po-

litical question doctrine. By interfering with core mili-

tar) ‘2terminations in a zone of active combat, and also

witii sensitive national security and foreign relations

matters related to the rebuilding of Iraqi political and

judicial institutions, the district court’s injunction vio-

lates fundamental separation-of-powers principles. See

App., infra, 33a (Brown, J., dissenting) (district court’s

injunction violates the “political question doctrine”).

As discussed above, this case and the relief approved

by the court of appeals directly implicate sensitive deci-

sions made by the Executive in the conduct of a multina-

tional force abroad. In the current volatile atmosphere

in Iraq, a judicial order demonstrating a lack of respect

Oe SAY Ee ET el oe Ge eee ee |

for the Executive Branch’s determinations to hold a se-

curity internee to permit the Iraqi legal system to pros-

ecute him could have unsettling consequences. As Jus-

tice Jackson observed in Hirota:

For this Court now to call up these cases for judicial

review under exclusively American law can only be

regarded as a warning to our associates in the trials

that no commitment of the President or of the mili-

tary authorities, even in matters such as these, has

finality or validity under our form of government

until it has the approval of this Court. And since the

Court’s approval or disapproval cannot be known

until after the event—usually long after—it would

substantially handicap our country in asking other

nations to rely upon the word or act of the President

in affairs which only he is competent to conduct.

Hirota v. MacArthur, 335 U.S. 876, 878 (1948) (state-

ment respecting oral argument). The unprecedented

injunction in this case barring the MNF-I from releas-

ing respondent to the custody of Iraq, sharing informa-

tion with the Iraqi authorities over the handling of re-

spondent, or allowing the Iraqi authorities to prosecute

respondent for offenses committed in Iraq underscores

the continuing wisdom of Justice Jackson’s observation.

As Judge Brown explained, the injunction in this

case “substantial[ly] impair[s] * * * the Executive’s

ability to prosecute the war efficiently and to make good

on its commitments to our allies.” App., infra, 38a.

Such an extraordinary exercise of American judicial

power over the conduct of important and sensitive for-

eign and military affairs abroad warrants this Court’s

review.

a pie eg te nei an ae eee Oe ew eT EE Oe ey & Cee | 4 as ta we eo an 2 wo ee I ~~ yh a the =

. % fr . EE Sey Se ; 7 «es

C. The Court Should Grant The Petition In This Case And

Hold The Petition In Munaf

The petition for a writ of certiorari in Munaf pres-

ents the same threshold jurisdictional question pre-

sented by this case. In Munaf, the District of Columbia

Circuit held that United States courts lack jurisdiction

over a habeas petition filed by an individual detained by

the MNF-I and convicted by the CCCI. 482 F.3d at

583-584. That case, unlike this one, does not involve an

injunction, in part because the district court dismissed

the Munaf petition at the outset for lack of jurisdiction

and the court of appeals affirmed. As a result, this case

provides a superior vehicle than Munaf for considering

the full set of issues concerning the authority of the Uni-

ted States courts to entertain habeas petitions filed on

behalf of individuals detained by a multinational force

abroad acting under international authority. Accord-

ingly, this Court should grant the petition in this case

and hold the petition in Munaf pending the disposition

of this case. Alternatively, this Court could grant both

petitions and consolidate the cases for oral argument.

< “

;

oie

. Pe Pe es ee ee ee a eee Cee ee ee ae oy es eRe

CONCLUSION

The petition for a writ of certiorari should be gran-

CR:

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General

DOUGLAS N. LETTER

JONATHAN H. LEVY

LEwis S. YELIN

Attorneys

SEPTEMBER 2007

PR ee LG YOR, ee PER SE Ca

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 06-5126

SANDRA K. OMAR AND AHMED S. OMAR, AS NEXT

FRIENDS OF SHAWQI AHMAD OMAR, APPELLEES

FRANCIS J. HARVEY, SECRETARY OF THE UNITED

STATES ARMY, ET AL., APPELLANTS

Argued: Sept. 11, 2006

Decided: Feb. 9, 2007

Rehearing En Banc Denied: May 24, 2007’

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 iave before us a petition for a writ of

. habeas corpus filed on behalf of Shawqi Ahmad Omar,

Y 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

' Circuit Judges Brown and Kavanaugh would grant the petition for

rehearing en banc.

(la)

: : yen, : ee, A eS ee

eee ee ee ee mH

Ap bia eae OV a is 0 CAS ot ngs aan at oes Mali hi Decne eile 7 ie ieee ai gh ORES i td ke a ~

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 en-

tertain the petition and that, in any event, it had no au-

thority to enter the preliminary injunction because Om-

ar’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.

In late October 2004, United States military forces

operating in Iraq arrested appellee Shawqi Ahmad

Omar, a dual American/Jordanian citizen, at his Bagh-

dad home. Born in Kuwait, Omar became a naturalized

American citizen following his marriage to the former

Sandra Kay Sulzle. According to Omar, after the over-

throw 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 de-

tention.

The government paints a very different picture of

Omar’s presence in Iraq. According to the government,

U.S. military forces, operating in lraq 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 re-

solve his status. According to the government, the pro-

cess employed by the panel exceeded the requirements

of Article 5 of the Third Geneva Convention. The rec-

ord, 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, 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 cus-

tody 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 Bagh-

Pe eee eS sigh f ORS ee oe ee eS ee ee

. a ‘Namie :

dad-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 Dis-

trict 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 Oper-

ations 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 consti-

tutional provisions, chief among them the right to due

process guaranteed by the Fifth Amendment. The pe-

tition 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 juris-

diction 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 ov-

er to the custody of Iraqi authorities in an effort to ev-

ade 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.” Jd. at 17.

Approximately two months after filing the petition,

Omar’s attorney received an e-mail from the Depart-

ment 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 juris-

diction, that transfer would amount to an illegal extra-

dition, and that Omar would likely face torture by Iraqi

authorities, the attorney sought and received an ex par-

te 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,

69 S. Ct. 197, 93 L. Ed. 1902 (1948), in which the Sup-

reme 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 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 opin-

ion.” Order Granting the Mot. for a Prelim. Inj. (here-

inafter “Prelim. Inj. Order”). In the accompanying

memorandum opinion, the court explained that the juris-

dictional issues in the case presented questions “so

serious, substantial, difficult and doubtful, as to make

them fair ground for litigation and thus for more deli-

berative investigation.” Omar v. Harvey, 416 F. Supp.

2d 19, 23-24 (D.D.C. 2006) (internal quotation marks om-

itted) (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 weigh-

ty jurisdictional questions, the court issued the injun-

ction to freeze the status quo. In doing so, the court cre-

dited Omar’s contention that transfer could irreparably

deprive him of this investigation by “undo[ing the]

court’s jurisdiction.” Jd. at 28. This, the court conclud-

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

purpose of adjudicating matters on their merits.” /d.

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 injunction was improper

because, by prohibiting Omar’s removal from American

or MNF-I custody, it bars the government from pro-

viding 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.

i the we Oe Te,

| iataaai TE PE PR ae OE oe te

[

Il.

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, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (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 HIS-

TORY OF HABEAS CORPUS 46-49 (1980) (internal

quotation marks and citation omitted). In the eigh-

teenth century, it was the only common law writ expres-

sly mentioned in the United States Constitution. See

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

U.S. 507, 558, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (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 ha-

beas 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, 124 S. Ct. 2686, 159 L.

Ed. 2d 548 (2004); see also Hamdan v. Rumsfeld, 548

U.S.—, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006) (enter-

taining habeas petition of alien detained at Guantanamo

Bay, Cuba); Hamdi, 542 U.S. 507, 124 S. Ct. 2633, 159 L.

Ed. 2d 578 (plurality opinion) (entertaining habeas

petition of American citizen detained within the United

States).

Notwithstanding the writ’s long and celebrated his-

tory, the government argues that the district court lacks

jurisdiction to consider Omar’s petition. Although ack-

nowledging both that U.S. military officials are holding

Omar, Appellants’ Br. 15, and that those officials oper-

ate “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 off-

icials operating as part of a multinational force. In sup-

port, 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 pe-

titions filed by Japanese citizens convicted and sen-

tenced by an American-led international military tri-

bunal in Japan “set up by General MacArthur as the

agent of the Allied Powers.” 338 U.S. at 198, 69 S. Ct.

197. From Hirota, the government draws the general

principle that federal courts lack habeas jurisdiction

over individuals held by “United States military per-

sonnel under the auspices of a multinational force that

is distinct from the United States military and ulti-

mately 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 pet-

itioners filed directly in the Supreme Court, he argues

that “Hirvia’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 app-

lied 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, 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, 72 S. Ct. 699, 96 L. Ed. 988 (1952), and United

States ex rel. Toth v. Quarles, 350 U.S. 11, 76S. Ct. 1,

100 L. Ed. 8 (1955). In both of those cases, however, the

habeas petitioners had been convicted not by multina-

tional tribunals, but rather by American tribunals sit-

ting 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. Om-

ar also relies on Hamdi, 542 U.S. 507, 124S. Ct. 2633,

159 L. Ed. 2d 578, and Rasul, 542 U.S. 466, 124 S. Ct.

2686, 159 L. Ed. 2d 548. Although we share Omar’s view

that these decisions provide a basis for questioning Hir-

ota’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 multi-

national tribunals. As the Supreme Court has cautioned,

“(i}f a precedent of [the Supreme] Court has direct app-

lication 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/Am-

erican Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917,

104 L. Ed. 2d 526 (1989).

. " oa

mor?

‘ bel dati a ia a oe a he

nth | tient. Deal 2 eae .

a Lee Sek a ae 1 ee

10a

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 fol-

lows:

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.

lla

338 U.S. at 198, 69 S. Ct. 197. As is apparent, Hirota

nowhere explains which “circumstances” were control-

ling. Nor does anything in the opinion hold that federal

courts lack habeas jurisdiction whenever, as the gov-

ernment insists, American officials detaining a petition-

er are functioning as part of a multinational force. In-

deed, 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 gov-

ernment claims it supports. None of this should be sur-

prising given that the Court heard Hirota not on a pet-

ition for certiorari granted to resolve an important ques-

tion 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 exis-

tence of a multinational force. But two other circum-

stances—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 Amer-

ican troops in Germany pursuant to his conviction by an

12a

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?” Jd. 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 sen-

tence imposed on Flick.” Jd. Concluding that the Mil-

itary Tribunal IV was not, in fact, an American tribunal,

we dismissed the petition.

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, conclu-

ding 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, 69 S. Ct.

197. Such language demonstrates that the Court’s pri-

mary concern was that the petitions represented a colla-

teral attack on the final judgment of an international tri-

bunal.

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 interna-

tional conviction, but only to test the lawfulness of his

extrajudicial detention in Iraq, where he has remained

in the control of U.S. forees 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, judg-

AP St ee eee ae 5 oe

13a

ment, and sentencing. See Hamdi, 542 U.S. at 518-19,

124 S. Ct. 2633 (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/d20040825

fay.pdf (describing military definition of security inter-

nees as “[c]ivilians interned during conflict or occu-

pation 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 ju-

dicial second-guessing of an international tribunal’s final

determination of guilt.

The fact that Omar has never been convicted of crim-

inal activity thus distinguishes this case from both Hir-

ota and Flick, and rightly so, given that challenging ex-

trajudicial detention is among the most fundamental

purposes of habeas. “At its historical core,” the Sup-

reme Court has explained, “the writ of habeas corpus

has served as a means of reviewing the legality of Exec-

utive detention, and it is in that context that its pro-

tections have been strongest.” JNS v. St. Cyr, 533 U.S.

289, 301, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001); see

also Brown v. Allen, 344 U.S. 443, 533, 73 S. Ct. 397, 97

L. Ed. 469 (1953) (Jackson, J., concurring in the judg-

ment) (“The historic purpose of the writ has been to re-

lieve 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, 124 S.

Ct. 2633 (Scalia, J., dissenting). Where, as in Hirota

;

}

14a

and Flick, individuals have been convicted and sen-

tenced by a criminal tribunal, some form of judicial pro-

cess has occurred, reducing the risk of unlawful extra-

judicial 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.

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 prop-

osition 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 Uni-

ted States.” 28 U.S.C. § 2241(a), (c)(1). Omar’s petition

satisfies both requirements. First, the petition is “with-

in the jurisdiction” of the district court because respon-

dents, 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, 124 S. Ct.

2686 (“{A] district court acts within [its] respective juris-

diction within the meaning of § 2241 as long as the

custodian can be reached by service of process.” (second

alteration in original) (internal quotation marks omit-

;

‘

ee Pe ae ee eS, oo ms hn ee “eo Ue OP

l5a

ted)). Second, although American personnel in Iraq op-

erate 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 indepen-

dent 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.

The government next argues that the district court

lacked jurisdiction to enter the preliminary injunction

because this case “raise[s] quintessential political ques-

tions beyond the authority or competence of the judi-

ciary to answer.” Appellants’ Br. 41. The political ques-

tion doctrine puts beyond judicial cognizance “political

decisions that are by their nature committed to the poli-

tical branches.” Schneider v. Kissinger, 412 F.3d 190,

193 (D.C. Cir. 2005) (internal quotation mark omitted).

For example, and relevant to this case, the doctrine bars

courts from considering claims whose adjudication

would require judicial wading into foreign policy or mili-

tary 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 ma-

nner 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 au-

thority to implement foreign policy and military func-

ee eee te

EE A eee fare ee See ee a eT ee ee ee ieee eT aS ~ bi ial

ig Na 2 Ee - :

Sy ae gee tt iS

l6a

”

tions 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, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962),

we must focus on Omar’s specific claims. First, he chall-

enges 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 Amend-

ment because his “arrest and arbitrary, indefinite

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

terest in being free from physical detention by one’s own

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

U.S. at 529, 124 S. Ct. 2633). Second, he challenges his

transfer, arguing both that the military lacks treaty or

statutory authorization to transfer him to Iraqi author-

ities 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 de-

tention is justiciable. In Hamdi, as here, the petitioner

challenged his detention by U.S. military authorities

pursuant to an “enemy combatant” determination. Al-

though the government never directly invoked the polit-

ical question doctrine, it argued that separation of pow-

ers 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

‘

ie EE a ee

17a

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

the Resp’ts at 25, Hamdi v. Rumsfeld, 542 U.S. 507, 124

S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (No. 03-6696). Un-

equivocally rejecting this contention, the Hamdi plur-

ality 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 review-

ing and resolving claims like those presented here.”

Hamdi, 542 U.S. at 535, 124 S. Ct. 2633.

Omar’s challenge to his transfer is equally justic-

iable. 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 auth-

orization. In the extradition context, of course, treaty or

statutory authorization has long been required, Valen-

tine v. United States ex rel. Neidecker, 299 U.S. 5, 8, 57

S. Ct. 100, 81 L.Ed. 5 (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, 77S. Ct. 1409, 1 L. Ed. 2d 1544 (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 may determine whether the Executive pos-

sesses 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

ee RE nos ee

18a

transferring them to German custody. /d. at 1214. In

support, they argued (among other things) that they

were “surrenderable only pursuant to the terms of an

extradition treaty.” Jd. at 1219 n.59. Although ulti-

mately rejecting the petitioners’ authorization claim, we

first satisfied ourselves that a valid treaty in fact auth-

orized the transfers. /d.; see also Neidecker, 299 U.S. at

18,57S. Ct. 100 (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 de-

tainees like Omar. Resolving this claim will involve dif-

ficult questions of constitutional law—questions which,

significantly for our purposes, will require no judicial!

, intrusion into the exclusive domain of the political bran-

ches. To be sure, a decision on the merits might well

;

PS hat pee ee,

d 5 Sa Ve ST

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, 72 S. Ct. 863, 96 L.Ed. 1153 (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, 72 S. Ct. 863, failed to prevent

the Supreme Court from deciding whether the President

| may seize private property without congressional auth-

orization. Likewise, in United States v. Curtiss-Wright

Export Corp., 299 U.S. 304, 57S. Ct. 216, 81 L.Ed. 255

(1936), the Court, despite the obvious implications for

U.S. foreign policy, decided whether the President could

’

;

19a

constitutionally issue export controls on munitions ab-

sent specific statutory authorization. In each of these

cases, the Court resolved a fundamental question of Ex-

ecutive authority without making any foreign policy or

military judgments of its own. This case, like Youngs-

town and Curtiss-Wright and unlike Schneider and Ban-

coult, 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,” Jn 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 pre-

cisely the type of claim the rule of non-inquiry bars

courts from considering. This may be correct. See, ¢.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 “anti-

pathetic 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 chal-

lenge 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.

POE Be eee a a

\s = <apy. » A - .

ee eb ee Se ee se eee eS ee

ay = 2%

— ea

io? ioe

la ll Bs Oe at A

;

20a

IV.

Having established that the district court has jur-

isdiction, we turn to the propriety of the preliminary in-

junction. 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 in-

junctions), 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, substan-

tial, 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 out-

right 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 injunc-

tion 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 injunc-

tion (other than the jurisdictional arguments we have

ere =

OR ONS Tow te Pe ee FS

PS ee ee

2la

rejected in parts II and III), is its claim that transfer to

Iraqi authorities constitutes release from American/

MNF-I custody—“all of the relief to which [Omar] is en-

titled through a writ of habeas corpus.” Appellants’ Br.

20. The government asserts that transfer is release be-

cause transfer “wouid 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 author-

ities and releasing him to walk free from his current de-

tention. 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., Ntakiruti-

mana 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 releas-

ing him.

To be sure, as the government argues, Iraqi au-

thorities might arrest Omar the moment U.S. forces re-

lease him. Expanding on this point, the dissent spec-

ulates 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.” Dis-

;

‘i

22a

senting Op. at 6. The dissent also thinks that U.S. mil-

itary officials could “notify Iraqi authorities as to the

exact time and place of [his] release, thereby effectively

ensuring his immediate recapture and detention.” /d.

As a result, the dissent maintains, Omar has failed to

demonstrate irreparable injury because even if he pre-

vails 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 dis-

cretion ... .”). 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 comm-

unicate 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 dis-

sent’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 pos-

sibly know what would happen to Omar if the district

court barred his transfer and ordered his release. Given

23a

this uncertainty, a preliminary injunction protecting

Omar from the certainty of transfer now is hardly an

“empty gesture.” See Dissenting Op. at 18.

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 un-

able to transfer him either directly through a formal

handoff or indirectly by “releasing” him with a wink-

and-a-nod to the Iraqis. The United States may certain-

ly share information with other sovereigns, see id. at

4-5, 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 pet-

ition, see part III supra, and federal courts have auth-

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

Dissenting Op. at 17, the political question doctrine is

not implicated. In any event, we think it exceedingly

unlikely that American military officers, sworn to up-

hold the law and represented by the Justice Depart-

ment, would evade an order of a United States district

court. Indeed, if the district court orders Omar’s re-

lease, 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 circum-

stances, ensures his lawful release from American cus-

tody.

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 Govern-

ment from rendering the petition moot by granting re-

lief,” Appellants’ Br. 57, though undoubtedly correct,

has nothing to do with the issue before us. Because the

oe ae tla ee Me ey See Seed ee ee en Ope Brg

he ba

Vie ol. wee”

~ oe) "a yar 8

;

24a

military plans to transfer Omar to Iraqi authorities, not

to release him, the preliminary injunction, far from

“prevent[ing] the Government from rendering the pe-

tition moot by granting relief,” preserves the district

court’s jurisdiction to review the lawfulness of that

transfer.

The government cites Spencer v. Kemna, 523 US. 1,

1188S. Ct. 978, 140 L. Ed. 2d 43 (1998), for the proposi-

tion 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. 1993), for the

proposition that conviction moots a pre-trial habeas peti-

tion. 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 trans-

port out of Iraq, or release with a promise to conceal the

time and place of the release.” Dissenting Op. at 18.

Like the dissent’s other arguments, this argument is

wholly speculative, for it assumes, without record sup-

port, 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 dis-

trict court orders his release. Speculating about the

conditions under which *... military might release Omar

or the lawfulness of those conditions is thus not only

premature—the matter may never arise—but irrelevant

aA RES Fo oe PCE, Pepe ee! SL MS Ve See we TE ee IE, PENT CM Oe OE TN PT RC rey:

mA? ete

rr he

CS PPS Peres, ee nb “a ee er ee Oe

Gee EE EU ey Ne eB TEM wR epee tee For ee Ae bs Mh PR

25a

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, al-

leging 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

19-20, 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 ex-

ercise jurisdiction over him because the Attorney Gen-

eral had transferred him to a state prison, where he

served a state sentence concurrently with his federal

sentence. Because a statute, 18 U.S.C. § 4082, auth-

orized the Attorney General to assign federal prisoners

to state prisons, the court ruled that “[the statutory]

authority is sufficient to permit the transfer of petition-

er 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 propo-

sition 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 auth-

ority to transfer Omar, or that no such authority is nec-

essary.

According to the dissent, “the bar on Omar’s presen-

tation before the CCCI while in United States custody

is improper.” Dissenting Op. at 17. Although we agree

with the dissent that the injunction prohibits the mili-

tary from presenting Omar to the CCCI for trial, we

Lae?

)

» Foyt Fan, BE sh biti «£0 1+ : Pw ee, at ain Pe ee Ae \ <2 pene i my o oe, ns, Ode tab Ort RED ae wd ay ae ee Be Diab ;7.

SI Se Bees ey Te re ee ME EO Pim ee OF ee ee a Pe Me, DS my TREY, By Ae iphetee) age - CY ome NA pte ey ; y ae $

26a

think this an appropriate exercise of the district court’s

discretion. The dissent’s argument hinges on the ass-

umption, unsupported in the record, that Omar’s “pre-

sentation does not hamper the ability of the government

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

his favor.” Jd. Although the government has advised us

that the “MNF-I maintains physical custody of detain-

ees 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 uncer-

tain 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 E

implications for habeas jurisdiction, the district court, ;

by 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 “re-

markable effect of enabling a court sitting in Wash-

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

to make an arrest on its own soil.” Dissenting Op. at 19. ;

US. courts, of course, have no authority to constrain the

actions of Iraqi authorities. But in this case the gov-

ernment 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 unremark-

able action for a United States district court.

27a

Vv.

In sum, neither Hirota nor the political question

doctrine deprives the district court of jurisdiction to en-

tertain Omar’s petition for a writ of habeas corpus. Be-

cause transfer would not afford Omar all the relief he

could obtain through a writ of habeas corpus and be-

cause the district court’s preliminary injunction proper-

ly preserves its jurisdiction to entertain his petition, we

affirm.

So ordered.

BROWN, Circuit Judge, dissenting in part.

With only minor hesitation,’ 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 re-

lease outright, it may indeed dictate the terms of his re-

lease. Hence, I write separately to explain why I would

vacate the district court’s injunction.

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:

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

izenship was one of the determinative factors in Hirota v. MacArthur,

338 U.S. 197, 69 S. Ct. 197, 93 L. Ed. 1902 (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. 6

(describing the issue in Hirota as “the availability of habeas to non-

citizens convicted abroad by multinational tribunals”).

28a

[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 per-

sons acting in concert or participation with them, or hav-

ing actual or implicit knowledge of this Order by person-

al 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 memorandum opin-

ion.

The Motion for a Preliminary Injunction referenced

by the Order was originally styled a Motion for a Temp-

orary Restraining Order, and it asked the court to pre-

vent “the transfer of Shawqi Omar to the authority of

any other government, sovereign, country, or agency un-

til this Court has an opportunity to consider and decide

the merits” of Omar’s habeas petition.

The injunction, by its terms, grants the original Mo-

tion, thereby barring Omar’s transfer to different custo-

dians. The injunction also explicitly instructs the re-

spondents not to “remove [Omar] from United States or

MNF-I custody,” an act necessary for his release.” Fin-

ally, 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

* The majority interprets this instruction as covering transfer but

not release. Maj. Op. 11-12. 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.

‘

;

]

epee ee Le ee RO. By ne Ee Ok Oe AG ee ee eee ene C ie REO EL eS eee) eS ae eee ys ae 4 : .

; one . ~ BSS s Batt ie a) Pee Gg eR PD m e . "1 si Avs :

” L . 4 : Jeb ee P

‘Fi

29a

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

mained 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 memor-

andum opinion.” In summary, the injunction bars Om-

ar’s transfer to a foreign custodian, his outright release,

and his presentation before the CCCI while within Uni-

ted States or MNF-I custody.®

In addressing the propriety of this injunction, I note

first that we heard arguments in this case on the por-

tentous 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 announ-

cing 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 home-

land 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 cap-

ture of an alleged enemy combatant by American mili-

tary personnel operating in a war zone. It is in this con-

text that we must measure Omar’s likelihood of succee-

* 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 CCCI due to

the district court’s unprecedented injunction in that case.”).

30a

ding in his habeas petition, the harm the injunction im-

poses on the respondents, and the interest of the public

in the case.’

While the test for preliminary injunctions is a flexi-

ble one—a strong showing on the merits may com-

pensate 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.” /d.

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 peti-

‘

;

tioner seeks from the courts, we must determine

whether the action to be enjoined would preclude or

* 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 see-

king habeas after conviction in Iraq). The proper contours of court jur-

isdiction 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 con-

sideration.

OS IRS Rie ee ee eee ST

3la

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 re-

lease, Omar has demonstrated no grounds whatsoever

for such remedies. Equitable remedies typically involve

either an order to a custodian to ameliorate the con-

ditions of a petitioner’s detention, e.g., Miller v. Over-

holser, 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, 88S. Ct. 1556, 20 L. Ed. 2d 554

(1968). Release from detention trumps ameliorated de-

tention, and Omar has pointed to no statutory penalties

that would persist after his release. Cf Lane v. Will-

iams, 455 U.S. 624, 631-33, 102 S. Ct. 1322, 71 L. Ed. 2d

508 (1982) (limiting the Carafas exception to “civil dis-

abilities” imposed 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 circumstances, 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. Pro-

vided such presentation does not hamper the ability of

P| 7

PT PT PN or EE OM Re Te CLEP OR iy SIDI Th Ren eT

Pe Ts eT NSO ee ee ST ae NG ree pe erat Se PRR ENO eee o RP Seu, HOD

32a

the government to order Omar’s release should the dis-

trict 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 re-

lease, 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, 69 S. Ct. 197, 93 L.Ed.

1902 (1948); Neely v. Henkel, 180 U.S. 109, 123, 21 S. Ct.

302, 45 L. Ed. 448 (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 injunc-

tion—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? Be-

cause Omar seeks an injunction against his transfer to

Iraqi authorities, we have to 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 offi-

33a

cials 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 !ikelihoods 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 intergov-

ernmental communication, an injunction against trans-

fer 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 [raqi authorities to secure the country.

Any judicial order barring this sort of information shar-

ing in a military zone would clearly constitute judicial in-

terference in a matter left solely to Executive discretion

and would hence be improper under the political ques-

tion doctrine. See Hamdi v. Rumsfeld, 542 U.S. 507,

531, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (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 politic-

ally accountable for making them.”); cf Bancoult v. Mc-

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

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

Thus, the courts are powerless to enjoin the United Sta-

tes from informing Iraqi officials about the planned re-

lease of Omar, and under these circumstances, an in-

aT Sa

34a

junction against outright transfer is an empty gesture

that cannot be sustained. See CityFed, 58 F.3d at 746.

The majority recognizes the practical equivalence be-

tween transferring Omar and “‘releasing’ him with a

wink-and-a-nod to the Iraqis,” Maj. Op. 13, but draws

the opposite conclusion. The majority’s logic proceeds

as follows: (1) An injunction barring transfer is permiss-

ible. (2) Unrestricted intergovernmental communication

could convert release into transfer. (3) Therefore, feder-

al courts must have the power to limit intergovernmen-

tal 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.” Jd. 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 author-

ity could hardly be clearer.

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 injun-

ction.” CityFed, 58 F.3d at 746. The first two factors

ae et ’ fe &

<_< ia 4

PP Ae Te Pe pe ee ee

‘

35a

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 lraqi 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 Ira-

qi authorities a viable form of preliminary relief, Omar

would need to show some likelihood of obtaining per-

manent relief protecting him from Iraqi custody. This

remedy we might call “release plus,” consisting of re-

lease combined with immunity to Iraqi prosecution, re-

lease 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 prero-

gative, 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 in-

junction and garden-variety stays on extradition. See

J .. 2 3 Se eT ee

' sie < aa 77.

36a

Maj. Op. 12. As the majority notes, “transferring a

petitioner to the foreign country seeking extradition is

obviously not the same as releasing him.” Jd. But Omar

is physically detained in Jrag. Therefore, transfer in

this context is not akin to extradition. Cf Ntakir-

utimana v. Reno, 184 F.3d 419 (5th Cir. 1999); Then v.

Melendez, 92 F.3d 851 (9th Cir. 1996). Rather, “trans-

fer” 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, 77S. Ct. 1409, 1 L. Ed. 2d

1544 (1957),° and American citizenship is not a grant of

immunity to commit crimes in other countries with

impunity, Neely, 180 U.S. at 123, 21 S. Ct. 302. As no-

ted, 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 phys-

ically in the territory of the foreign sovereign that seeks

* 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. 10, 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 for-

eign sovereign’s wishes. Significantly, the Girard Court reversed an

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

ard, 354 U.S. at 526, 530,77 S. Ct. 1409.

37a

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 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 juris-

diction and custody over a prisoner is one of comity be-

tween 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 ul-

timately prevails on the merits of his petition and gains

his release from United States custody. Thus, the

claimed “irreparable injury” (Iraqi custody) is not diff-

erent from the most likely consequence of the relief Om-

ar 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 irre-

parable injury. But as noted, Omar has not established

‘9

;

‘

38a

any legal basis for protection from Iraqi custody.’ It

simply defies logic for a court to conclude Omar needs a

preliminary injunction to protect him from the conse-

quences of the relief he is ultimately seeking. Similarly,

while the district court treated loss of habeas jurisdic-

tion as a second irreparable injury, this is truly injurious

only to the extent the exercise of jurisdiction might pro-

duce 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 pro-

secute the war efficiently and to make good on its com-

mitments to our allies cannot be denied. Given the grav-

ity of such impairment in these troubled times, the third

factor places much on the government’s side of the led-

ger.

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 ren-

der 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.

* I donot make light of Omar’s assertion he will receive severe treat-

ment as a result of Iraqi detention. To recognize that ovr 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 gov-

ernment, we need not assume the political branches are oblivious to

these concerns. Indeed, the other branches possess significant diplo-

matic tools and leverage the judiciary lacks.

oO ae ee ae, Se ee

39a

The court did not address the merits of Omar’s under-

lying 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 suffi-

cient to satisfy the first CityFed factor. Omar v. Har-

vey, 416 F. Supp. 2d 19, 23-28 (D.D.C. 2006). Addres-

sing the second factor, the court treated its potential

loss of jurisdiction as an irreparable injury without ex-

plaining how its retention of jurisdiction could provide

Omar with relief that would somehow preclude his being

taken into Iraqi custody. Jd. 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 weighing of the CityFed factors represents an

abuse of discretion.

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 dis-

trict 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 respect-

fully dissent.

40a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 05-2374 (RMU)

SANDRA K. OMAR ET AL., PETITIONERS

Vv.

FRANCIS J. HARVEY, ET AL., RESPONDENT

[Filed: Feb. 13, 2006]

MEMORANDUM OPINION

GRANTING THE PETITIONER’S' MOTION FOR A

PRELIMINARY INJUNCTION”

Las Rs ee Be Str eae Cee Th gh Mp aeaee AT TS

I. INTRODUCTION

This matter is before the court on the petitioner’s

motion for a preliminary injunction. The petitioner is an

' There are three petitioners in this case, two of whom are acting

as next friends of Shawqi Ahmad Omar. Because Shawqi Ahmad Omar

is the only petitioner allegediy subject to transfer to the Iraqi authori-

ties, the court refers to the petitioners in the singular.

? The petitioner filed a motion for a temporary restraining order.

Because the motion has been fully briefed on an expedited schedule, the

court treats it as a motion for a preliminary injunction. See, e.g.,

Planned Parenthood Fed'n of Am., Inc. v. Nat'l Park Serv., 1989 WL

- 39374, at *4 (D.D.C. 1989).

asta CO AOE A ee eee ee ee RE Ree te Pk

4la

American citizen seeking to enjoin his transfer from

Camp Cropper, a detainee camp operated by the Multi-

national Force-Iraq, to the custody of the Central Cri-

minal Court of Iraq (“CCCI”). Because this controversy

presents serious, substantial and difficult questions that

give rise to the petitioner’s right to present proof to

support his claims, because the likelihood the petitioner

will suffer irreparable injury is high, and because the

public interest strongly favors vigorous application of

the writ of habeas corpus on behalf of United States cit-

izens, the court grants the petitioner’s motion for a pre-

liminary injunction.

Il. BACKGROUND

The petitioner is an American citizen held by the

Multinational Force-Iraq (“MNF-I”) since October 29,

2004. Pet. for Writ of Habeas Corpus (“Pet.”) 12. The

petitioner has not been charged with any crime.? Jd. On

January 24, 2006, United States officials allegedly

moved the petitioner from Camp Bucca to Abu Ghraib.

Pet’r’s Supplemental Br. in Supp. of Mot. for a TRO

(“Pet’r’s Mot. for Prelim. Inj.”) at 3. The petitioner is

currently at Camp Cropper. /d. at 5. On February 2,

2006, the petitioner’s attorneys received an e—mail from

the respondents, United States military officials, stating

* The petitioner asserts that he was in Lraq seeking reconstruction

work. Pet. for Writ of Habeas Corpus (“Pet.”) § 18. The respondents

allege, however, that the petitioner is an associate of Abu Musab al

Zarqawi, “the recognized leader of Al-Qaeda in Iraq,” and that he was

harboring foreign fighters intent on engaging in jihad. Resp’ts’ Opp’n

to Pet’r's’ Mot. for TRO (“Resp’ts’ Opp’n”) at 6. The foreign fighters

allegedly stated that the petitioner “made comments about his fluency

in English which allowed him to visit Baghdad hotels in order to entice

foreigners to return to Mr. Omar's home for the purpose of their kidnap

and ransom.” /d.

42a

that “a determination was previously made to refer his

case to the Central Criminal Court of Iraq.”* Jd. at 4.

Fearing the consequences of the petitioner’s impen-

ding transfer to the custody of the CCCI, the petition-

er’s attorneys filed a motion for an ex parte temporary

restraining order late in the evening of February 2,

2006. On February 3, 2006, the court granted that mo-

tion and issued a temporary restraining order valid until

Monday, February 13, 2006. Pursuant to the court’s

order, the petitioner and the respondents submitted

briefs addressing the factors for injunctive relief and the

constitutional implications arising out of the exercise of

judicial authority over the matter. Order Granting Fx

Parte TRO (Feb. 3, 2006). The court now turns to the

petitioner’s motion for a preliminary injunction.

Ill. ANALYSIS

A. Legal Standard for Injunctive Relief

This court ray issue interim injunctive relief only

when the movant demonstrates:

(1) a substantial likelinood 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.

Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066

(D.C. Cir. 1998) (quoting CityFed Fin. Corp. v. Office of

Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995));

‘ The petitioner alleges that the respondents decided to refer him to

the Central Criminal Court of Iraq in an attempt to evade judicial

review. Pet’r’s Mot. for Ex Parte TRO at 1.

OE Pn Rete Pe ee ee eae Me

: .

43a

see also World Duty Free Americas, Inc. v. Summers,

94 F. Supp. 2d 61, 64 (D.D.C. 2000). It is particularly

important for the movant to demonstrate a substantial

likelihood of success on the merits. Cf. Benten v.

Kessler, 505 U.S. 1084, 1085 (1992) (per curiam). In-

deed, absent a “substantial indication” of likely success

on the merits, “there would be no justification for the

court’s intrusion into the ordinary processes of admini-

stration and judicial review.” Am. Bankers Ass’n v.

Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140

(D.D.C. 1999) (internal quotation omitted). In cases that

raise questions “going to the merits so serious, sub-

stantial, difficult and doubtful, as to make them fair

ground . . . for more deliberative investigation,” how-

ever, courts should eschew an “exaggeratedly refined

analysis of the merits at an early stage in the litigation.”

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

559 F.2d 841, 844 (D.C. Cir. 1977). This is particularly

true when the moving party seeks to maintain the status

quo pending a final determination of the merits. Jd.; see

also Carabillo v. ULLICO Inc. Pension Plan and Trust,

355 F. Supp. 2d 49, 53 (D.D.C. 2004).

The four factors should be balanced on a sliding

scale, and a party can compensate for a lesser showing

on one factor by making a very strong showing on ano-

ther factor. CSX Transp., Inc. v. Williams, 406 F.3d 667

(D.C. Cir. 2005) (citing CityFed Fin. Corp., 58 F.3d at

747). “An injunction may be justified, for example,

where there is a particularly strong likelihood of success

on the merits even if there is a relatively slight showing

of irreparable injury.” CityFed Fin. Corp., 58 F.3d at

747.

Moreover, the other salient factor in the injunctive

relief analysis is irreparable injury. A movant must “de-

44a

monstrate at least ‘some injury’” to warrant the gran-

ting of an injunction. CityFed Fin. Corp., 58 F.3d at 747

(quotation omitted). Indeed, if a party makes no show-

ing of irreparable injury, the court may deny the motion

for injunctive relief without considering the other fac-

tors. /d.

Because interim injunctive relief is an extraordinary

form of judicial relief, courts should grant such relief

sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972

(1997). As the Supreme Court has said, “[i]t frequently

is observed that a preliminary injunction is an extraordi-

nary and drastic remedy, one that should not be granted

unless the movant, by a clear showing, carries the

burden of persuasion.” /d. (citation omitted). There-

fore, although the trial court has the discretion to issue

or deny a preliminary injunction, it is not a form of relief

granted lightly. In addition, any injunction that the

court issues must be carefully circumscribed and tail-

ored to remedy the harm shown. Natl Treasury

Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.

Cir. 1990) (citation omitted).

B. The Court Grants the Petitioner’s Motion for

Injunctive Relief

As a legal matter, resolution of the petitioner's mo-

tion for a preliminary injunction and his underlying hab-

eas petition centers on whether the petitioner is held in

either physical or constructive custody of the respon-

dents. The parties dispute whether the MNF-I, the

entity that is technically holding the petitioner in its cus-

tody, is an entity that is synonymous with, or a part of,

the respondents, such that the petitioner is in the res-

pondents’ constructive custody. Concluding that the ma-

tter presents serious and difficult questions and that the

¥ alls a Ba fo ea id Ny NE Oa SIT ee Se eee ne a oat

: ; ety’ Se Rete ae eee

45a

risk of irreparable injury is high, the court rules that the

petitioner meets the requirements for a preliminary

injunction. The preliminary injunction factors are ana-

lyzed in turn below.

(1) Substantial Likelihood of Success on the Merits

The petitioner argues that he is likely to succeed on

his underlying habeas petition because it is “well—es-

tablished that prisoners held by the United States can-

not be imprisoned without legal process.” Pet’r’s Mot.

for Prelim. Inj. at 16 (citing Hamdi v. Rumsfeld, 542

U.S. 507 (2004)). The respondents, on the other hand,

argue that the petitioner cannot succeed on his under-

lying habeas petition because the court does not have

jurisdiction to hear a habeas case when the respondents

do not have custody of the petitioner. Resp’ts’ Opp’n to

Pet’r’s Mot. for TRO (“Resp’ts’ Opp’n”) at 12. The res-

pondents further argue that the court’s involvement in

this case violates the separation of powers’ between the

judicial and executive branches of government. 7d. at

21. The court addresses each of these arguments in

turn. a. Jurisdiction

The respondents describe the MNF-I as “an inter-

national coalition force, acting on behalf and at the re-

quest of a foreign government,” and argue that they do

* “Under this constitutional doctrine of ‘separation of powers,’ one

branch is not permitted to encroach on the domain or exercise the

powers of another branch.” BLACK’S LAW DICTIONARY 1365 (6th ed.

1990). The related doctrine of “political question” “holds that certain

issues should not be decided by the courts because their resolution is

committed to another branch of government.” Jd. at 1158. In the inter-

national context, the “act of state” doctrine “precludes the courts of this

country from inquiring into the validity of governmental acts of a

recognized sovereign committed within its own territory.” /d. at 34.

eal SE eR 2 ee eee ee See Le Ne Re ey ts ha Say RRR LL Oe er eee

~ "

46a

not have custody of the petitioner. Jd. at 3, 4. The peti-

tioner, on the other hand, argues that, at the very least,

he is in the constructive custody of the respondents.

Pet’r’s Reply at 4. Without resolving the factual dispute

between the parties, the court determines that the case

at bar “raise[s] questions going to the merits so serious,

substantial, difficult and doubtful, as to make them fair

ground for litigation and thus for more deliberative in-

vestigation.”* Holiday Tours, Inc., 559 F.2d at 844.

A court’s jurisdiction over a habeas petition rests on

its jurisdiction over the petitioner’s custodian. Rums-

feld v. Padilla, 542 U.S. 426, 442 (2004); Rasul v. Bush,

542 U.S. 466, 478-79 (2004). Where a court does not

have actual jurisdiction over a habeas petitioner’s

custodian, a court may nonetheless have jurisdiction if

the petitioner is held in the constructive custody of a

respondent within the court’s jurisdiction. 28 U.S.C.

§ 2241(c)(1) (stating that the writ of habeas corpus

extends to an individual “in custody under or by color of

the authority of the United States” (emphasis added));

see also United States ex rel. Keefe v. Dulles, 222 F.2d

390, 392 (D.C. Cir. 1955) (analyzing whether the

respondents had constructive custody of a habeas

petitioner when the petitioner was detained by French

authorities); Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 47

(D.D.C. 2004) (explaining that the language of the

habeas statute provides for habeas jurisdiction when the

custodian possesses constructive custody of the

petitioner).

® As the D.C. Circuit has explained, a preliminary injunction is app-

ropriate for preserving the status quo in cases raising difficult issues.

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F 2d

841, 844 (D.C. Cir. 1977).

TIE Fe NOT ay Ren CPE ee ee en NE ene Ee EES, MOE TEE ELL Sten SER OIG ne a? MENT heer oT Samay Mae pte Oe

47a

In the instant case, the respondents argue that the

4 petitioner cannot succeed on the merits of his under-

s lying habeas petition because the court does not have

; jurisdiction over the entity that officially serves as the

petitioner’s custodian, the MNF-I. Resp’ts’ Opp’n at 16.

The respondents further assert that the “MNF-I oper-

ates with the consent of the sovereign government of

Iraq to maintain security and stability in Iraq, and re-

ceives its authority pursuant to United Nations Security

Council resolutions.” Jd. at 13. The respondents rely

primarily on Hirota v. MacArthur, a case in which the

Supreme Court declined to exercise jurisdiction over

habeas petitions filed by Japanese citizens seeking re-

view of convictions of a military tribunal in Japan even

though the military tribunal was set up by a United

States military officer, General Douglas MacArthur.

Hirota v. MacArthur, 338 U.S. 197, 198 (1948) (per curi-

am). The court reasoned that the tribunal sentencing

these petitioners was not a United States tribunal be-

cause General MacArthur was acting as the head of the

Allied forces. Jd.

Three important distinguishing factors lead the court

to the conclusion that Hirota is inapplicable in the pre-

sent situation. First, Hirota involved habeas petitions

filed by residents and citizens of Japan. Jd. at 198.

Shawqi Omar is an American citizen, and Supreme

Court case law after the Hirota decision indicates that

citizens are entitled to the highest level of protection

from detention at the hands of the executive. Johnson

v. Eisentrager, 339 U.S. 763, 770 (1950) (describing an

“ascending scale of rights” with “citizenship as the head

of jurisdiction”). Indeed, Justice Douglas, in his concur-

ring opinion in Hirota, expressed alarm at the potential

implications of denying an American citizen access to

58,» 3 ay . oe ee Peg oi “ ip “- + b A ete eo! Niet Se a Je - : _

EN ree a ee eM Te Ie eee Ne eT Oe RT ETT MEG Pee cnt a ee eh ee eee

48a

the habeas writ simply because the citizen stood con-

demned by an multinational military tribunal.’ Hirota,

338 U.S. at 201-202.

‘Second, the petitioner in this case presents evidence

showing that he is in the constructive custody of the res-

pondents. Specifically, the petitioner submits two e-

% mails from the State Department to the petitioner's

a wife, stating that the petitioner is “under U.S. military

- care, custody and control,” and that the petitioner is

“ynder control of Coalition Forces (U.S. and MNF).”

Pet’r’s Reply, Exs. 1 & 2. These e-mails cast doubt on

the respondents’ claim that the petitioner has been un-

der MNF-I custody’ since his original detention. Res-

p’ts’ Opp’n at 6. In short, whereas the Hirota decision §

indicates that the Japanese detainees were held by an :

entity other than the United States, the petitioner here

’ With perhaps prescient insight, Justice Douglas wrote:

Today Japanese war lords appeal to the Court for applica-

tion of American standards of justice. Tomorrow or next

year an American citizen may stand condemned in Ger-

many or Japan by a military court or commission. If no

United States court can inquire into the lawfulness of his

detention, the military have acquired, contrary to our

traditions . . . a new and alarming hold on us.

Hirota v. MacArthur, 338 U.S. 197, 201-202 (1949) (Douglas, J.,

concurring) (internal citations omitted).

* It is worth noting the well-established principle in the analogous

criminal law context that constructive possession may happen through

another person or by one or more persons at the same time. CRIMINAL

Jury INSTRUCTIONS: DISTRICT OF COLUMBIA, Instruction No. 3.08

(4th ed. 2004): see also United States v. Harrison, 931 F.2d 65 (D.C.

Cir. 1991), cert. denied, 502 U.S. 953 (1991).

49a

has presented strong evidence that he is in the construc-

tive custody of the United States military.’

Third, the Hirota case was decided prior to signifi-

cant evolution of the Supreme Court’s habeas jurispru-

dence. In the time between the Hirota decision and the

Supreme Court’s most recent habews decisions, the Su-

preme Court has expanded and clarified the application

of the “Great Writ” to better fulfill its ultimate purpose

of allowing an individual to present “a simple challenge

to physical custody imposed by the Executive.” Padilla,

542 U.S. at 441 (discussing the historical development of

habeas jurisprudence). For example, in 1953, the Court

expanded jurisdiction over habeas cases to include pe-

titions brought by individuals convicted in military tri-

bunals who alleged that their court martials denied them

of basic rights. Burns v. Wilson, 346 U.S. 137 (1953); 95

A.L.R. Fed. 472 §2(a) (discussing the importance of

Burns v. Wilson). In the concurring opinion, Justice

Frankfurter explained that “[t]he right to invoke habeas

corpus to secure freedom is not to be confined by any a

priori or technical netions of ‘jurisdiction.’” Jd. at 148

(Frankfurter, J., concurring). By 1973, the majority of

the Supreme Court, embracing the sentiments first

expressed by Justice Frankfurter twenty years earlier,

“rejected interpretations of the habeas corpus statute

that would suffocate the writ in stifling formalisms or

hobble its effectiveness with the manacles of arcane and

scholastic procedural requirements,” and expanded the

* Stated differently, Hirota analyzed the matter of custody in a

different stage of the litigation. Here, the question remains whether

the coalition force that holds the petitioner is an entity controlled by the

United States. Holiday Tours, Inc., 559 F.2d at 844 (explaining that a

preliminary injunction is appropriate for preserving the status quo in

cases raising difficult issues).

ee eae ON ee Ee eS Tee eT ee ee tae ee Le eee - -

4 c - re - 2 4 me

50a

relief addressable by the writ to include restraints other

than physical confinement. Hensley v. Mun. Court, San

Jose Milpitas Judicial Dist., Santa Clara County, 411

U.S. 345, 350 (1973).

The Supreme Court has recently further clarified the

scope of the traditional habeas to respond to new situa-

tions, illuminating this court’s present path. See, ¢.9.,

Rasul, 542 U.S. at 483 (extending the reach of habeas to

nonresident aliens detained in Guantanamo Bay, Cuba

and reasoning that “[aJs Lord Mansfield wrote in 1759,

even if a territory was ‘no part of the realm,’ there was

‘no doubt’ as to the court’s power to issue writs of ha-

beas corpus if the territory was ‘under the subjection of

the Crown.’” (citing King v. Crowle, 2 Burr. 834, 854-55,

97 Eng. Rep. 587, 598-99 (K.B.)). The Court’s expan-

sions and clarifications of habeas have served the ulti-

mate purpose of preserving the writ’s status as the “sta-

U.S. 507, 557 (2004) (Scalia, J., dissenting) (quoting

WILLIAM BLACKSTONE, 1 COMMENTARIES *153). Hiro-

ta is therefore distinguishable from the case at bar in a

” As the Supreme Court recognized when deciding whether a citi-

zen’s physical location made a “determin: ‘ive constitutional difference”

for purposes of habeas:

This creates a perverse incentive. Military authorities faced

with the stark choice of submitting to the full-blown criminal

process [in the United States] or releasing a suspected enemy

combatant captured on the battlefield will simply keep citizen-

detainees abroad.

Hamdi v. Rumsfeld, 542 U.S. 508, 524 (2004).

5la

fashion rendering it inapplicable to the present situa-

tion.”

The lack of precedent directly on point requires this

court to examine the fundamental concepts underlying

habeas jurisprudence. Courts analyzing whether a res-

pondent has custody of a habeas petitioner “must avoid

‘legalistic’ and ‘formalistic’ distinctions and honor the

‘breadth and flexibility’ of the Great Writ.” Abu Ali, 350

F’. Supp. 2d at 46. To this end, “federal courts have long

disregarded legalistic requirements in examining app-

lications for the writ and judged the papers by the

simple statutory test of whether facts are alleged that

entitle the applicant to relief.” United States v. Morgan,

346 U.S. 502, 506 n.3 (1954). And, as stated supra, “t]he

"' In addition to Hirota, the respondents cite a few other c ses for the

well-established proposition that United States courts cannot review

decisions taken by the tribunals of other sovereign nations. Resp’ts’

Opp’n at 17 (citing Holmes v. Laird, 459 F.2d 1211 (D.C. Cir. 1972),

Keefe v. Dulles, 222 F.2d 390 (D.C. Cir. 1954), Duchow v. Elmore, 1995

WL 425087 (E.D. La. July 19, 1995) (unpublished opinion)). Although

the respondents do not explicitly state it, they are arguing that the

MNF-I has the status of a sovereign nation. Jd. In contrast to the

cases cited by the respondents, the petitioner here has not been

convicted by a foreign tribunal and is not contesting a decision taken by

another sovereign nation. The petitioner here alleges that United State

officials, through a multinational military force made up mostly of

American troops, holds him in violation of American laws. Pet. 12. The

petitioner, in other words, is not challenging a decision taken by ano-

ther sovereign nation; he merely challenges the role that American

officials, through a multinational force, have in his detention. Where a

habeas petitioner challenges actions taken allegedly at the behest of the

United States, the court engages in a constructive custody analysis.

See, e.g., Abu-Ali, 350 F. Supp. 2d, 28 47 (D.D.C. 2004) (stating that

habeas jurisdiction exists where United States officials possess either

actual or constructive custody of a petitioner) (citing Keefe, 222 F 2d at

392).

52a

right to invoke habeas corpus to secure freedom is not to

be confined by any a priori or technical notions of ‘jur-

isdiction.’”” Burns, 346 U.S. at 148 (Frankfurter, J., con-

curring). Thus, contrary to the respondents’ argument

that this court should avoid ruling on the issues presen-

ted in either the underlying habeas petition or the mo-

tion for injunctive relief because it is allegedly devoid of

jurisdiction, Resp’ts’ Opp’n at 3, the court’s analysis

must focus on whether the petitioner has alleged any

facts that entitle him to relief.”

The petitioner alleges that the respondents, through

a multinational military force comprised largely of Am-

erican troops and commanded by American officials,

Pet’r’s Reply at 5 (stating that 87.5 percent of the for-

eign forces in Iraq are from the United States), are hol-

ding him in violation of his due process, see generally

Pet. These facts alone allow the court to entertain the

petitioner’s habeas petition. Hirota, 338 U.S. at 204

(Douglas, J., concurring) (explaining that the writ of ha-

beas corpus runs not to an official of an international

coalition, but to the American officials in such a coali-

tion). As Justice Douglas stated:

If an American General holds a prisoner, our process

can reach him wherever he is. To that extent at least

the Constitution follows the flag. It is no defense for

him to say that he acts for the Allied Powers. He is

an American citizen who is performing functions for

our government. It is our Constitution which he sup-

In situations where the court's jurisdiction is a contested issue,

moreover, district courts routinely order jurisdictional discovery to bet-

ter analyze their ability to hear a case. See, e.g., Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 580 (1999) (explaining that the district

court dismissed a case after it permitted jurisdictional discovery).

58a

ports and defends. If there is evasion or violation of

its obligations, it is no defense that he acts for ano-

ther nation. There is at present no group or confed-

eration to which an official of this Nation owes a

higher obligation than he owes to us.

Id. Viewed in conjunction with the need to avoid “an

exaggeratedly refined analysis of the merits at an early

stage in the litigation,” particularly where the requested

injunctive relief seeks to maintain the status quo, Holi-

day Tours, 559 F.2d at 844, the possibility that formulaic

concepts of habeas may deprive the court of jurisdiction

at a later stage of the litigation is not enough for this

court to deny the motion for a preliminary injunction.

With a view to ensuring that the petitioner does not be-

come a victim of a lack of precedent and because the

facts as alleged entitle the petitioner to relief, the court

concludes that the jurisdictional issues in the present

case do not pose a fatal obstacle at this stage of the liti-

gation.

b. Separation of Powers

The respondents argue that the court’s consideration

of the petitioner’s underlying habeas case and the mo-

tion for injunctive relief violates fundamental principles

of separation of powers. Resp’ts’ Opp’n at 21. The res-

pondents posit that the court’s consideration of the peti-

tioner’s claims requires the court to “inject itself into an

exclusive Executive function: the United States mili-

tary’s role in MNF-I, a multinational coalition force

dispatched at the request of the Iraqi government pur-

suant to United Nations Security Council Resolution

1546 to assist Iraq with its wartime security and re-

building efforts.” /d. at 22. But doctrines such as act of

state, separation of powers and political question, al-

54a

though important considerations, do not “extinguish[]

the fundamental right of a citizen to challenge his

detention colorably alleged to be at the behest of the ex-

ecutive.” Abu-Ali, 350 F. Supp. 2d at 57 (denying the

government’s motion to dismiss a habeas petition filed

by an American citizen who was detained by the Saudi

government allegedly at the request of the United

States). “The competing interests of the executive to

manage foreign affairs and the judiciary to protect the

due process rights of citizens has never been resolved

wholly in the executive’s favor.” Jd. at 62.

The court is mindful that this case presents complex

questions regarding the Executive’s power in enigmatic

times, mindful of American citizens’ due process rights

and humbled by the gravity of the judiciary’s role as the

arbiter of the two. Marbury v. Madison, 5 U.S. 187, 180

(1803). The court’s obligations, however, requires inqu-

iry into the legality of American officials holding Amer-

ican citizens. See Hirota, 338 U.S. at 204. Therefore,

the court concludes that the petitioners have satisfied

their burden of persuasion on the first of the four

preliminary injunction factors. That is, this case pre-

sents questions “going to the merits that are so serious,

substantial, difficult and doubtful, as to make them a fair

ground for litigation and thus for more deliberative

investigation.” Holiday Tours, 559 F.2d at 844.

(2) Irreparable Injury

The petitioner’s original request for ex parte injunc-

tive relief alleged that the United States military was

set to present him to the CCCI for a hearing on Feb-

ruary 3, 2006. The court, concerned that such a transfer

would cause irreparable harm to the petitioner, either

because it exposed the petitioner to the risk of torture or

55a

because it could moot the petitioner’s pending habeas

petition, granted the motion for an ex parte temporary

restraining order. Order Granting Ex Parte TRO (Feb.

3, 2006). The respondents’ opposition asserts, and the

court has no reason to doubt, that the alleged February

3, 2006 hearing did not take place.’* Resp’ts’ Opp’n at

10.

The petitioner’s supplemental briefing reiterates the

general argument that he is likely to suffer irreparable

injury if transferred to Lraqi custody. Pet’r’s Mot. for

Prelim. Inj. at 17. Specifically, the petitioner alleges

that a transfer “would expose him to a substantial risk

of torture, even death by Iraqi authorities,” and that a

transfer “would deprive him of his rights to due pro-

cess.” /d. at 17, 19. The respondents assert that the

petitioner is not in danger of imminent torture because

the “MNF-I retains physical custody of [the petitioner]

throughout the CCCI proceedings.” Resp’ts’ Opp’n at

33. That is, the petitioner is not subject to transfer from

the MNF-I to the Iraqi authorities unless the CCCI

determines that the petitioner’s case should be referred

to a trial, and the petitioner is subsequently convicted at

the trial. /d.

Without assessing the statistical probability that the

petitioner may be tortured in the near future, the res-

pondents’ assertions have not allayed the court’s original

concern that any physical transfer of the petitioner may

prematurely moot the case or undo this court’s juris-

diction. See 28 U.S.C. § 1651. Divesting the court of

jurisdiction, either as a matter of law or de facto, would

abuse the process now put in place for the purpose of ad-

" Indeed, the respondents state that no hearing was scheduled for

February 3, 2006. Resp’ts’ Opp'n at 9 n.5.

56a

judicating matters on their merits. See Rasul, 542 U.S.

at 465; see also Landis v. N. Am. Co., 299 U.S. 248, 256

(1936) (observing that courts “must guard against depri-

ving the processes of justice of their suppleness of adap-

tation to varying conditions”). Accepting the respon-

dents’ contention that the petitioner’s appearance before

the CCCI does not constitute an immediate transfer to

the Iraqi authorities does little to ease the court’s appre-

hension of irreparable injury. Specifically, the respon-

dents assert that much time may pass before the peti-

tioner’s initial appearance at the CCCI and his ultimate

conviction and corresponding transfer in thal same

forum. Resp’ts’ Opp’n at 14 (stating that the decision to

refer the petitioner’s case to the CCCI will not imm-

inently result in a transfer and explaining that the pe-

titioner “will be transferred to the physical custody of

the Iraqi authorities only if he is convicted after trial

(and [the petitioner] will proceed to trial only if the in-

vestigative judge believes his case merits a trial)”). The

respondents, however, do not address the possibility

that the petitioner may be presented to the “CCI and in

that same day, be tried, convicted and transferred to the

CCCI’s jurisdiction and beyond the jurisdiction of this

court. The court’s own unfamiliarity with the function-

ing of the CCCI increases, rather than decreases, its

concern about the risk of injury to the petitioner. Avra-

midis v. Arco Petrolewm Prods. Co., 748 F.2d 12, 15 n.8

(1st Cir. 1986) (affirming a district court’s decision to

issue a preliminary injunction when the district court

based its decision on a lack of information).

57a

(3) Harm to the Responden

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.