# Petition for Writ of Certiorari — Geren v. Omar, 128 S. Ct. 741 (2007) (No. 07-394) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0018%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text “ul eo 07-394 SEP 21 2007 wo.) OFFICE OF THE CLERK In the Supreme Court of the Gnited States a : 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 2; ‘ Baio a BS &-, > 2 (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 ‘ : . > * IV 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 Vv 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 v. 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 2 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 3 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 4 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 ~~ ‘ x ; 7 E : Re a : Bt 5 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- 6 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 7 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 8 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 9 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 * * 4 “a 5 3 > % bs . , 10 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 ae yt Nae. epee eS es FOE NE, Me ET Pa Rey te AD ge ihe ea EN ere Se 1] 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- : % t 7 “4 4 r - APRS ae Pe ey) Eee ATT Phe nae Peay ee TT fe = E FE & fe 3 e la Z tj ig E ; : 12 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. a z : a 2 ‘ a 4 4 “™ : f ; 4 a 4 q 4 4 4 Ea ee Se Ta POE Sa ee Pate Pe cen ¥ 13 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— K 4 ; : j aoe ee wee eae veh ee oe eee fe Se ; + *s 7 } % ‘ OF ee ee ae Age PS opr a rene eens Pee ee eA a CL, Oe ee ee ea ee we ee 8 14 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. , 15 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. q : 3 : 2 : me . 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 ; - 16 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 > a] * 2 ,? ‘ e ye 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 17 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 : 4 1 . : OT a a St Se ee _@ s i a | r) 4 awa ae ey ee Ae QD eer ee eS. , ty a e i ke e | i Pa wn B. wh b & & , i f- F a be 18 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 s > J ~ : : . , 5 . % ; " ‘ L 19 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 * F . iy Ne ; iy i 4 my 2 4 : 4 F : 7 f E é s 20 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 ; 21 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). 22 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. 23 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 Bs id «e - ’ 24 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 | 25 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 26 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. zg 7 i : 4 ‘ . a 4 | s. ; ] 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- : < ‘ ; ; 4 : 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 ey oy fy P| 7 ee 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. Il 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 9 j % E : ! ‘ yi 4 a 3 F 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 Sa ee Tee © ct Pie tt 5 & a ' 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 4 ‘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. IV I agree with the majority that the district court has jurisdiction to entertain Omar’s petition for a writ of habeas corpus. However, because each part of the 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 . s : . 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 ~ " a 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). mg 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- ble bulwark of our liberties.” © Hamdi v. Rumsfeld, 542 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 Respondents & Public Interest Considerations Although the direct harm to the respondents in this case is difficult to ascertain, the court does not take lightly the harm that may result from a possible en- croachment into executive authority. Balancing exec- utive and judicial authority is a “delicate exercise.” Ba- ker v. Carr, 369 U.S. 186, 211 (1962) (stating that “deci- ding whether a matter has in any measure been comm- itted by the Constitution to another branch of govern- ment, or whether the action of that branch exceeds whatever authority has been committed, is itself a deli- cate exercise in constitutional interpretation”). The res- pondents argue that for the court to exercise jurisdiction would be to interfere with the workings of MNF-I as well as the Iraqi government. Resp’ts’ Opp’n at 20-21. According to the respondents, federal courts must “av- oid inserting themselves in the middle of pending for- eign criminal proceedings.” Jd. at 21. Indeed, “federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” Hwang Geum Joo v. Japan, 413 F.3d 45, 49 (D.C. Cir. 2005) (citing Sosa v. Alvarez—Machain, 542 U.S. 692, 733 (2004)); see also Hamdi, 542 U.S. at 531 (explaining that “[w]ithout doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them”); see also NS v. Chadha, 462 U.S. 919, 960 (1983) (Powell, J., concurring) (noting that “[t]he Framers perceived that ‘[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny’”) (citing THE 58a FEDERALIST NO. 47, at 324 (J. Madison) (J. Cooke ed., 1961)). In balancing the hardships to the parties, however, the court must conclude that the threat of tangible harm to the petitioner resulting from the court’s failure to act outweighs any potential harm to the Executive’s exer- cise of its war powers. The court, moreover, notes that it is in the public’s interest to have a judiciary that does not shirk its obligations, Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) (explaining that “one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political over- tones”), particularly where the Great Writ is concerned, Hamdi, 542 U.S. at 536 (reasoning that the “Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions”). IV. CONCLUSION For the foregoing reasons, the court grants the peti- tioner’s motion for a preliminary injunction. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 13th day of Febru- ary, 2006. RICARDO M. URBINA United States District Judge 59a APPENDIX C UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 05-2374 Document No.: 10 SANDRA K. OMAR ET AL., PETITIONERS Vv. FRANCIS J. HARVEY ET AL., RESPONDENTS ORDER GRANTING THE MOTION FOR A PRELIMINARY INJUNCTION For the reasons stated in the accompanying Memo- randum Opinion, it is this 13th day of February, 2006, ORDERED that the motion for a preliminary injunc- tion is GRANTED, and it is FURTHER ORDERED that the respondents, their agents, servants, employees, confederates, and any persons acting in concert or participation with them, or having actual or implicit knowledge of this Order by personal service or otherwise, shall not remove the petitioner from United States or MNF-I custody, or take any other action inconsistent with this court’s memorandum opinion. SO ORDERED. RICARDO M. URBINA United States District Judge 6la APPENDIX D UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 2006 No. 06-5126 SANDRA K. OMAR AND AHMED S. OMAR, AS NEXT FRIEND OF SHAWQI AHMAD OMAR, APPELLEES Vv. PETE GEREN, SECRETARY OF THE UNITED STATES ARMY, ET AL., APPELLANTS [Filed: May 24, 2007] ORDER Before: Tatel and Brown, Circuit Judges, and Edwards, Senior Circuit Judge. Upon consideration of appellant’s petition for rehear- ing filed March 26, 2007, the response thereto, and appellant’s Fed. R. App. P. 28(j) letter, it is ORDERED that the petition be denied. ’ Circuit Judge Brown would grant the petition for rehearing. Per Curiam FOR THE COURT: Mark J. Langer, Clerk By: Michael C. McGrail Deputy Clerk 63a APPENDIX E UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 06-5126 05cev02374 September Term, 2006 SANDRA K. OMAR AND AHMED S. OMAR, AS NEXT FRIEND OF SHAWQI AHMAD OMAR, APPELLEES v. PETE GEREN, SECRETARY OF THE UNITED STATES ARMY, ET AL., APPELLANTS [Filed: May 24, 2007] ORDER Before: GINSBURG, Chief Judge, and SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and KAVANAUGH,’ Circuit Judges. Appellants’ petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the * Circuit Judges Brown and Kavanagh would grant the petition for rehearing en banc. 64a judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and appellants’ Fed. R. App. P. 28()) letter, it is ORDERED that the petition be denied. Per Curiam FOR THE COURT: Mark J. Langer, Clerk By: Michael C. McGrail Deputy Clerk 65a APPENDIX F 1. 28 U.S.C. 2241 provides in pertinent part: Power to grant writ (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective juris- dictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. * * * kK * (c) The writ of habeas corpus shall not extend to a prisoner unless— (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or * * * * &* (3) He is in custody in violation of the Consti- tution or laws or treaties of the United States * * * * * *& * 2. Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498, provides: * * * * & 66a SECTION 1. SHORT TITLE. This joint resolution may be cited as the “Authori- zation for Use of Military Force Against Iraq Resolution of 2002”. SEC.2. SUPPORT FOR UNITED STATES DIP- LOMATIC EFFORTS. The Congress of the United States supports the efforts by the President to— (1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions regarding Iraq and encourages him in those efforts; and (2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq. SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to— (1) defend the national security of the United States against the continuing threat posed by Iraq; and 67a (2) enforce all relevant United Nations Security Council resolutions regarding Iraq. * * * * * ) 68a APPENDIX G [Seal Omitted] Security Council Distr.: General 8 June 2004 Resolution 1546 (2004) Adopted by the Security Council at its 4987th meeting, on 8 June 2004 The Security Council, Welcoming the beginning of a new phase in Iraq’s transition to a democratically elected government, and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent Interim Government of Iraq by 30 June 2004, Recalling all of its previous relevant resolutions on Iraq, Reaffirming the independence, sovereignty, unity, and territorial! integrity of lraq, Reaffirming also the right of the Iraqi people freely to determine their own political future and control their own natural resources, 69a Recognizing the importance of international support, particularly that of countries in the region, Iraq’s neighbours, and regional organizations, for the people of Iraq in their efforts to achieve security and prosperity, and noting that the successful implementation of this resolution will contribute to regional stability, Welcoming the efforts of the Special Adviser to the Secretary-General to assist the people of Iraq in achieving the formation of the Interim Government of Iraq, as set out in the letter of the Secretary-General of 7 June 2004 (S/2004/461), Taking note of the dissolution of the Governing Council of Iraq, and welcoming the progress made in implementing the arrangements for Iraq’s political transition referred to in resolution 1511 (2003) of 16 October 2003, Welcoming the commitment of the Interim Gov- ernment of Iraq to work towards a federal, democratic, pluralist, and unified Iraq, in which there is full respect for political and human rights, Stressing the need for all parties to respect and pro- tect Iraq’s archaeological, historical, cultural, and religious heritage, Affirming the importance of the rule of law, national reconciliation, respect for human rights including the rights of women, fundamental freedoms, and democracy including free and fair elections, Recalling the establishment of the United Nations Assistance Mission for Iraq (UNAMI) on 14 August 2003, and affirming that the United Nations should play a leading role in assisting the Iraqi people and gov- 70a ernment in the formation of institutions for representa- tive government, Recognizing that international support for restora- tion of stability and security is essential to the well- being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming Member State contribu- tions in this regard under resolution 1483 (2003) of 22 May 2003 and resolution 1511 (2003), Recalling the report provided by the United States to the Security Council on 16 April 2004 on the efforts and progress made by the multinational force, Recognizing the request conveyed in the letter of 5 June 2004 from the Prime Minister of the Interim Gov- ernment of Iraq to the President of the Council, which is annexed to this resolution, to retain the presence of the multinational force, Recognizing also the importance of the consent of the sovereign Government of Iraq for the presence of the multinational force and of close coordination bet- ween the multinational force and that government, Welcoming the willingness of the multinational force to continue efforts to contribute to the maintenance of security and stability in Iraq in support of the political transition, especially for upcoming elections, and to provide security for the United Nations presence in Iraq, as described in the letter of 5 June 2004 from the United States Secretary of State to the President of the Council, which is annexed to this resolution, 7la Noting the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organizations, Affirming the importance of international assistance in reconstruction and development of the Iraqi economy, Recognizing the benefits to Iraq of the immunities and privileges enjoyed by Iraqi oil revenues and by the Development Fund for Iraq, and noting the importance of providing for continued disbursements of this fund by the Interim Government of Iraq and its successors upon dissolution of the Coalition Provisional Authority, Determining that the situation in Iraq continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Endorses the formation of a sovereign Interim Government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected Transitional Government of Iraq assumes office as envisaged in paragraph four below; 2. Welcomes that, also by 30 June 2004, the occupa- tion will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sove- reignty; 72a 8. Reaffirms the right of the Iraqi people freely to determine their own political future and to exercise full authority and control over their financial and natural resources; 4. Endorses the proposed timetable for Ira [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0018%3A02. Public record. Not legal advice.