Opposition Brief — Geren v. Omar, 128 S. Ct. 741 (2007) (No. 07-394)

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No. 07-394

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

Petitioners,

SANDRA K. OMAR, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF IN OPPOSITION

Aziz Z. HUQ JOSEPH MARGULIES*

JONATHAN HAFETZ MACARTHUR JUSTICE

BRENNAN CENTER CENTER

FOR JUSTICE NORTHWESTERN UNIVERSITY

NEW YORK UNIVERSITY SCHOOL OF LAW

SCHOOL OF LAW 357 East Chicago Avenue

161 Avenue of the Americas, Chicago, IL 60611

12th Floor Telephone: (312) 503-0890

New York, NY 10013 Facsimile: (312) 503-1272

Telephone: (212) 998-6730

Facsimile: (212) 995-4550 VINCENT MOCCIO

AMY MAGID

SUSAN L. BURKE ROBINS, KAPLAN, MILLER

KATHERINE HAWKINS & CIRES!I L.L.P.

BURKE O’NEIL LLC 2800 LaSalle Plaza

4112 Station Street Minneapolis, MN 55402

Philadelphia, PA 19127 Telephone: (612) 349-8500

Telephone: (215) 487-6590 Facsimile: (612) 339-4181

Facsimile: (215) 482-0874

ERIC M. FREEDMAN

250 West 94th Street

New York, NY 10025

Telephone: (212) 665-2713

Facsimile: (212) 665-2714

Counsel for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Respondent Shawgqi Omar is a United States

citizen who has been in the physical custody and

control of American military personnel overseas for

more than three years. Petitioners, all federal offi-

cials, are his immediate and ultimate custodians.

They answer solely to the Constitution and laws of

the United States.

1. Can the petitioners evade respondent’s challenge

to the lawfulness of his detention by claiming

they act pursuant to the authorization of an in-

ternational body?

2. Should this Court grant certiorari merely to

review whether the District Court abused its dis-

cretion when it issued a standstill preliminary in-

junction under the All Writs Act and the habeas

corpus statute to preserve its jurisdiction so that

the litigation could proceed?

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................eecseeeeeeee i

Rae Si I isscntvwcessvsecesccesecsscscsesccosseseeseses ii

CITATION TO OPINIONS BELOW ................... 1

ERR I ARR SA Rc enone 1

i i olicinstininnieisaaieniaiaplebiimmciniaines 1

ho An iaak aii cscs i Giemeiinindundondaniononenenidessie 2

EE. PPROOORERRGG TRQNOD ocivn cis cccccsccccsccccsccccseccccsss 4

REASONS NOT TO GRANT THE PETITION ...... 12

I. The District Court Had Jurisdiction Under

THRO FEMIGOS DHRC US 6...cscccccccsseesersccccsessceees 13

A. The Government’s Attempt To Over-

rule Hamdi Sub Silentio Should Be

PE iiicuncdaictpstincsistasattednbictibaiiabeisbeioninenen 14

B. Hirota Creates No Exception To The

Custody Rule For Habeas Jurisdiction .... 18

C. The Opinion Below Opens No Flood-

IID iccccidierinenistieniencniitininitinnbiaiticameahiciibenns 23

II. Interlocutory Review Of The District

Court’s Standstill Preliminary Injunction Is

i ciiticiesaininicaciniiseidesthiieniesecinnieeedison 25

A. The District Court Had Authority To

Issue This Standstill Injunction And

Did Not Abuse Its Discretion................. 26

TABLE OF CONTENTS -— Continued

Page

B. The Court Should Not Grant Review

Of A Hypothetical Final Injunction To

Issue An Advisory Opinion ..................+. 29

C. The Court Should Decline To Review A

Merits Question Neither Briefed Nor

Passed On Below. ..............::ssccssssssseseseeees 31

SN iiiiliiacicd Ai a tsiccosds teihanlencsipiiencennpentunatiab’ 37

APPENDIX

BRP ND BIBLE BIN ccc cccccescescvcssccveccesvecesecsesees App. 1

EXTRACTS OF EXPERT DECLARATIONS

ON TORTURE IN IRAQI CUSTODY........... App. 23

;

TABLE OF AUTHORITIES

Page

CASES

Abney v. United States, 431 U.S. 651 (1977)............. 36

Ahrens v. Clark, 335 U.S. 188 (1948)............ 19, 20, 21

Ashcroft v. ACLU, 542 U.S. 656 (2004)... 32

Bracy v. Gramley, 520 U.S. 899 (1997) ...........ccceeeeee 27

Braden v. 30th Judicial Circuit Court of Ky.,

ey ee ED ttsbnencrpnctiistineiinnsonicctonneiusic 16, 21

Burns v. Wilson, 346 U.S. 137 (1953)............. ce cce eens 22

Clinton v. City of New York, 524 U.S. 417

STUD icicesinbhsi divioedbacaianataincenoadbllaebdiaiietadanepiatapaninanaiinn 24

Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

SERED CUI Rictinushitinidniaiickatnccsidbendibebicmoniaedsadidte 36

Ex parte Vallandigham, 68 U.S. 243 (1863)............. 21

Felker v. Turpin, 518 U.S. 651 (1996) ..................00002- 20

Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949)....... 19

Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960)........... 34

Girard v. Wilson, 152 F.Supp. 21 (D.D.C.

SPT Dis: sviccnssstiiacinaiitbiviniceisitisiibiatataiiaaaidiidiibabaalaianandaditics 33

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33

at wnicinicsisinieitantenauticteaptntcahdbphiiipasiihttaibciaieiebebatidaiiidiastaaissahiaiad 32

Grupo Mexicano de Desarrollo, S.A. v. Alliance

Bond Fund, 527 U.S. 308 (1999)...........cccscceseceeeeeee 32

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).......... passim

Harris v. Nelson, 394 U.S. 286 (1969)...................000 27

Heckler v. Campbell, 461 U.S. 458 (1983)................. 32

TABLE OF AUTHORITIES — Continued

Page

Hirota v. MacArthur, 338 U.S. 197 (1948)........ passim

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

SEE GRERER TESS SEGRE EAE ee PRE ae a ae 10

INS v. St. Cyr, 533 U.S. 289 (2001).........cccccccceseeeees 8,9

Jenkins v. McKeithen, 395 U.S. 411 (1969)................. 2

Johnson v. Eisentrager, 339 U.S. 763 (1950)............ 22

Judicial Watch v. Dep't of the Army, 466

F. Supp. 2d 112 (D.D.C. 2006) ........ eects 29

Khouzam v. Hogan, 497 F. Supp. 2d 615 (M.D.

a edouen 34

Lo Duca v. United States, 93 F.3d 1100 (2d Cir.

REESE AT RCE TEES A ES Ste 33, 34

Luria v. United States, 231 U.S. 9 (1913)................. 14

Madsen v. Kinsella, 343 U.S. 341 (1952)................... 17

Marbury v. Madison, 5 U.S. (1 Cranch) 137

RSET TRESS ave ea le aD 21

McElroy v. United States ex rel. Guagliardo,

I arden eiden 22

McGoldrick v. Compagnie Generale Trans-

atlantique, 309 U.S. 430 (1940).............ccccee cette 32

Midland Asphalt Corp. v. United States, 489

EEE AR Se ee Re ee 36

Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007)........... 9

Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir.

vii

TABLE OF AUTHORITIES — Continued

Page

Oklahoma Tax Comm’n v. Chickasaw Nation,

ET ASE SS Gees Aire 32

Omar v. Geren, No. 06-5126 (D.C. Cir. May 24,

SESSA aC IR TN ERS pena tls | APS Te Oe 12

Omar v. Harvey, 416 F.Supp. 2d 19 (D.D.C.

eecisiionisvenssnndanesdbdndninihiniabetinsnisnnianaiisaniuiiedsiain passim

Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007).... passim

Omar vu. Harvey, No. 1:05-cv-02374-RMU

hs A Tis SR ciincciissntnsntiaidicisteaiiidcinninnbeaiass 35

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ......... 36

Rasul v. Bush, 542 U.S. 466 (2004).................006 16, 21

~ Rosado v. Civiletti, 621 F.2d 1179 (2d Cir.

PRP eee ae eateries ee ore Pee Che eT ee OOS Ee 34

Rumsfeld v. Padilla, 542 U.S. 426 (2004)................. 22

Starks v. Seamans, 334 F.Supp. 1255 (E.D.

ON I aii ie call ial 34

Then v. Melendez, 92 F.3d 851 (9th Cir. 1996) ......... 28

United States ex rel. Toth v. Quarles, 350 U.S.

0 FAERIE RARE priesesre ies ies © rer PvE Nee Lerner 17, 18

United States v. Johnston, 268 U.S. 220 (1925)........ 29

United States v. N.Y. Tel. Co., 434 U.S. 159

EECA SARE Nam ISS Sen Ne ED ery Ot NORD 26

Valentine v. United States ex rel. Neidecker,

I I I ns cccccnritniasetirebiesinnbeneenndes 10, 34, 35

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

Tours, 559 F.2d 841 (D.C. Cir. 1977)...........:ccecseeeees 6

Vill

TABLE OF AUTHORITIES — Continued

Page

Williams v. Rogers, 449 F.2d 513 (8th Cir.

Ui iiciiiniesuibiihiitahcinsinacaphaiiabesbiiiiapenbatinealidécomtians 34, 35

Wilson v. Girard, 354 U.S. 524 (1957)................. 10, 33

STATUTES AND TREATIES

Authorization for Use of Military Force Against

Iraq Resolution of 2002, Pub. L. No. 107-243........ 23

Detainee Treatment Act of 2005, Pub. L. No.

SN ___REEES EERE ae ee en oe 16

Military Commissions Act of 2006, Pub. L. No.

Re Rs BI oeccsccesevecccccocconsensceccnssccusceane 16

is init cncdsinhartasceniammnenbaieiind 32

I i ctataialcimeeiaal 1

IID <n siccicsnidaninicnncittiedeabideneienanigdntinbanii 8

i sci achicrsaisinceamterhmlesieinbiauiinnieits 7, 26

a oc edineteisceindsnpeininenaiealininl 15

a ED ons csisccnncvesonibnsudansnceniintesiiats 15, 16

LAAT DT CE I 24

I sets neadentcaineibinnbenimnniiial 27

i I I sists canisicncecaciciistivientebeiienbisiielidteniaioeiiidnii 29

Extradition Treaty, U.S.—Iraqg, June 7, 1934, 49

IE SI shctintnicss soeetiniepichniphieicoigmscbiabeebinnbedisinalasabininbiuiaieds 23

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Advance Questions for General George W. Casey,

Jr., U.S. Army Nominee for Commander,

Multi-National Force-Irag, 108th Cong. 3

Jonathan Finer & Ellen Knickermeyer, Shiite

Militias Control Prisons, Officials Say,

Pe i, NN Bh I eidcidesccnsccctnsccnceccsnsceececcoece 7

Louis Henkin, Foreign Affairs and the United

States Constitution (2d ed. 1996) ..............ccceeseeeeees 17

Max Hilaire, United Nations Law and the

SreN TE CREE GID picicnccccectnsescscecscesesevescccssesees 17

Security Council Resolution 83 (1950)...................... 17

Security Council Resolution 84 (1950)...................... 17

Security Council Resolution 1378 (2001).................. 15

Security Council Resolution 1386 (2001).................. 14

Security Council Resolution 1511 (2003).................. 14

Security Council Resolution 1546 (2004).................. 15

United Nations, Haiti Facts and Figures (2003)...... 18

United States Department of State, Jrag:

Country Reports on Human Rights Practices

eg i Ce BD iiterictnciscnineasinsinchiciophincitdbigessdiimnenses 7

CITATION TO OPINIONS BELOW

The opinion of the Court of Appeals for the Dis-

trict of Columbia is reported at 479 F.3d 1 (D.C. Cir.

2007). The opinion of the district court is reported at

416 F. Supp. 2d 19 (D.D.C. 2006).

JURISDICTION

The Court of Appeals entered its judgment Feb-

ruary 9, 2007. Petitioners’ request for rehearing and

rehearing en banc was denied May 24, 2007. On

August 15, 2007, the Chief Justice extended the time

within which to file a petition for certiorari up to and

including September 21, 2007. The jurisdiction of this

Court was invoked under 28 U.S.C. § 1254(1).

STATEMENT

In this habeas action, a U.S. citizen challenges

the legal and factual basis of his prolonged detention

in the actual, physical custody of U.S. officials. The

issue in this interlocutory posture is narrow: Did the

District Court (Urbina, J.) abuse its discretion by

issuing a standstill preliminary injunction to preserve

its jurisdiction and enable the case to proceed? The

government seeks certiorari on the ground that there

is no jurisdiction over a habeas petition filed by a

U.S. citizen in the sole custody of U.S. officials. It also

finds an abuse of discretion in the District Court’s

preliminary injunction.

But jurisdiction exists, and the preliminary

injunction properly falls within the District Court’s

sound discretion. The government’s arguments train

on a hypothetical permanent injunction, which would

be ripe only at a later stage of this litigation, if ever.

Granting certiorari now would only encourage other

litigants to use interlocutory appeals to short-circuit

the litigation process.

I. Facts

1. The government’s petition confuses disputed

allegations for settled fact. See, e.g., Pet. 3-4, 19-20.

But at this stage of the proceeding, it is the habeas

petitioner’s allegations that must be “taken as admit-

ted.” Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Turning this time-honored principle on its head is

particularly anomalous here, where the habeas

petitioner (respondent here) is seeking to test the

very allegations the government improperly asserts

as true. It is past bizarre for the government to use

contested facts to deny a U.S. citizen the chance to

demonstrate that those facts are otherwise.

2. Respondent Shawqi Omar (“Mr. Omar”) is an

American citizen. Mr. Omar first came to the United

States almost thirty years ago as a student. Habeas

Pet. ¥ 17; Br. in Opp. (“BIO”) App. at 8. After Bagh-

dad’s fall in April 2003, Mr. Omar traveled to Iraq

with his ten-year-old son seeking contract work in

reconstruction. Jd. | 18. On October 29, 2004, U.S.

soldiers arrested Mr. Omar in front of his son at their

; 4

Baghdad home. Jd. 4 19. From the moment of his

arrest, Mr. Omar has insisted he is innocent of all

allegations against him and has sought access to U.S.

counsel. Id. 4 31.

Since his arrest, Mr. Omar has been in the exclu-

sive physical custody and control of United States

officials. See Pet. 4 (“Since his capture, respondent

has remained in the custody of members of the

United States armed forces acting as part of the

MNF-I [Multi-national Forces — Iraq].”); see also

Habeas Pet. | 22; BIO App. at 10 (U.S. Consul’s

statement that Mr. Omar is in “United States mili-

tary care, custody and control”). All U.S. personnel in

Iraq, including members of the MNF-I, operate under

the exclusive control of the United States. In oral

argument before the D.C. Circuit, counsel for the

government confirmed that Mr. Omar’s jailors “oper-

ate ‘subject to’ no independent MNF-I authority.”

Omar v. Harvey, 479 F.3d 1, 9 (D.C. Cir. 2007) (citing

Tr. of Oral Argument at 11 (“Tr”)). Indeed, the appel-

late court specifically asked government counsel

whether the government “agree[d] with the District

Court that Omar is in the authority and control of the

United States. Is that right?” Tr. at 11-12. Government

counsel responded: “It is, Your Honor. . . . ” Jd. at 12.

The parties thus agree: Mr. Omar’s immediate

and ultimate custodians report to, receive commands

from, and answer to U.S. officials and U.S. officials

alone. The government does not suggest — nor could it

— that these officials would disobey a federal court

order.

3. While detained by the United States,

Mr. Omar was questioned by American agents who

told him they worked for the Federal Bureau of

Investigation. Burke Decl., Ex. A. to Renewed Re-

quest for Access & Motion for Records, | 6, Omar uv.

Harvey, No. 1:01-cv-02374-RMU (D.D.C. April 21,

2006) (dkt. 29-3). During these interrogations, Mr.

Omar was beaten, and interrogators threatened his

wife and son. Jd. In each interrogation, and at each

stage of his detention, Mr. Omar unavailingly as-

serted his innocence and sought counsel. Habeas Pet.

¥ 29; BIO App. at 12.

According to the government, a decision was

made to refer Mr. Omar to the Central Criminal

Court of Iraq (CCCI) in August 2005. See Pet. App.

104a. In November 2005, U.S. authorities determined

that they had “no objection to Iraqi plans to prosecute

Mr. Omar in the CCCI.” Jd. The record discloses no

subsequent Iraqi judicial or investigative actions

concerning Mr. Omar, including in the three months

before the District Court issued the preliminary

injunction.

II. Proceedings Below

1. On December 12, 2005, Mr. Omar’s wife and

son filed a next-friend Petition for a Writ of Habeas

Corpus in the U.S. District Court for the District of

Columbia. On January 27, 2006, the District Court

issued a show cause order, and the government

secured an extension to respond. Also on or about

that day, Mr. Omar’s counsel learned from

Mr. Omar’s wife that the U.S. government had “trans-

ferred Mr. Omar to Abu Ghraib for some type of court

proceeding that had been scheduled for February 3,

2006.” Burke Decl. in Support of Supp. Briefing in

Motion for TRO, J 2, Omar v. Harvey, No. 1:01-cv-

02374-RMU (D.D.C. Feb. 2, 2006) (dkt. 10). Counsel

promptly applied to the State and Justice Depart-

ments for leave to participate in this proceeding. Jd.

On February 2, 2006, the Justice Department

rejected the request, advising counsel that no hearing

was scheduled for February 3, 2006, but warning that

“a determination was previously made to refer [Mr.

Omar’s] case to the Central Criminal Court of Iraq,”

and that the date of any transfer to Iraqi custody,

“whenever scheduled,” would be kept secret from

counsel. Id. { 3.

Because the government refused to give notice

when it might transfer Mr. Omar to Iraqi custody,

counsel sought an ex parte emergency motion for a

temporary restraining order (“TRO”). The District

Court granted the TRO, and entered a preliminary

injunction temporarily barring respondents from

transferring Mr. Omar to Iraqi custody. See Omar uv.

Harvey, 416 F. Supp. 2d 19 (D.D.C. 2006).

2. The District Court rejected the government’s

argument that Hirota v. MacArthur, 338 U.S. 197

(1948) (per curiam), precluded habeas jurisdiction.

“Hirota is inapplicable,” the Court held, for three

reasons. 416 F.Supp. 2d at 24. First, Hirota

concerned non-citizens’ access to the federal court.

Second, Mr. Omar was in the “constructive custody”

of U.S. officials. Third, Supreme Court precedent

after Hirota had confirmed the availability of habeas

jurisdiction for citizens seized overseas. Id. at 24-26.

3. With respect to the preliminary injunction,

the District Court applied the settled four-factor test:

(1) “substantial likelihood of success on the merits’;

(2) “irreparable injury if the injunction is not

granted”; (3) no “substantial” injury to “other inter-

ested parties” from the injunction; and (4) the fur- —

therance of “the public interest.” Jd. at 22 (citation

and quotations omitted).

Mr. Omar met the first factor because his petition

“‘raise[d] questions going to the merits so serious,

substantial, difficult and doubtful as to make them

fair ground for litigation and thus for more delibera-

tion.’” Id. at 23-24 (quoting Wash. Metro. Area Transit

Comm’n v. Holiday Tours, 559 F.2d 841, 844 (D.C. Cir.

1977)). As the District Court found, this standard

applies “when the moving party seeks to maintain the

status quo pending a final determination of the

merits.” Id. at 22 (citing Holiday Tours, 559 F.2d at

844).

On the remaining factors, the District Court

underscored the unrebutted evidence that Mr. Omar

would be tortured after transfer to Iraqi custody. Jd.

at 28.' It also expressed “concern that any physical

transfer of the petitioner may prematurely moot the

case or undo [the] court’s jurisdiction.” Jd. at 28

(citing 28 U.S.C. § 1651). Finally, the Court concluded

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 exercise of its war

powers,” and that “it is in the public’s interest to have

a judiciary that does not shirk its obligations.” Jd. at

29.

The District Court thus entered a standstill

preliminary injunction to preserve its jurisdiction,

directing that “respondents, their agents, servants,

employees, confederates, and any persons acting in

' In support of this contention, Mr. Omar submitted, inter

alia, a February 28, 2005, U.S. State Department report on Iraq,

citing “numerous, serious human rights abuses,” including

“coerced confessions and interrogation [as a] favored method of

investigation by police.” See United States Department of State,

Iraq: Country Reports on Human Rights Practices 2004, Feb. 29,

2005, http://www.state.gov/g/drl/ris/hrrpt/2004/41722. htm. He

also submitted expert declarations describing how Iraqi gov-

ernment forces systematically torture prisoners — especially

Sunni Muslims such as Mr. Omar — with electric shocks, stran-

gulation, breaking of limbs, sexual abuse, cigarette burns,

electric drills, and suffocation. See BIO App. 23-27. Finally, Mr.

Omar pointed out that respondents’ own declarant, Major-

General John Gardner, had stated that the military would not

turn over any prisoners to the Iraqis because of the risk of

torture. See Jonathan Finer & Ellen Knickermeyer, Shiite

Militias Control Prisons, Officials Say, Wash. Post, June 16,

2006, at Al. The government has never challenged or rebutted

these allegations.

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

action inconsistent with this court's memorandum

order.” See Pet. App. 59a.

4. The government sought interlocutory review

pursuant to 28 U.S.C. §1292(a\(1). The Court of

Appeals affirmed. 479 F.3d 1 (D.C. Cir. 2007).

a. All three judges agreed that “the district

court has jurisdiction to entertain Omar’s habeas

petition.” Jd. at 9; accord id. at 15 (Brown J., concur-

ring in part and dissenting in part). Writing for the

unanimous court, Judge Tatel rejected the govern-

ment’s argument that Hirota v. MacArthur, 338 U.S.

197 (1948) (per curiam), foreclosed judicial inquiry

into the lawfulness of Mr. Omar’s detention by U.S.

officials. Hirota, the court held, turned on four neces-

sary “circumstances”: “detention overseas,” “the

existence of a multinational force,” “foreign citizen-

ship,” and a “criminal conviction.” Jd. at 7. Absent the

latter two, the court concluded, Hirota did not govern.

Id.

Mr. Omar’s petition, the Court of Appeals ex-

plained, instead aligned with one of “the most fun-

damental purposes of habeas ... [:] ‘reviewing the

legality of Executive detention.’” Jd. (quoting INS v.

St. Cyr, 533 U.S. 289, 301 (2001)).’ “[W)here, as here,

the Executive detains an individual without trial, the

risk of unlawful incarceration is at its apex.” Jd.

Further, the Court of Appeals cautioned that this

Court’s recent decisions also “provide a basis for

questioning Hirota’s vitality.” 479 F.3d at 6.

b. The Court of Appeals also unanimously

rejected the government’s political question argu-

ment. “The Supreme Court’s recent decision in Hamdi

makes abundantly clear that Omar’s challenge to his

detention is justiciable.” Jd. at 10 (citing Hamdi vu.

Rumsfeld, 542 U.S. 507 (2004)). “‘{I]t does not in-

fringe on the core role of the military for the courts to

exercise their own time-honored and constitutionally

mandated roles of reviewing and resolving claims like

those presented here.’” Jd. (citing Hamdi, 542 U.S. at

535).

* Indeed, not one of the six Court of Appeals judges that

have been presented with the government’s view of Hirota has

unreservedly endorsed it. Cf. Munaf v. Geren, 482 F.3d 582, 584

(D.C. Cir. 2007) (“[Wle do not mean to suggest that we find the

logic of Hirota especially clear or compelling, particularly as

applied to American citizens.”); id. at 585 (Randolph, J., concur-

ring in the judgment) (stating that Hirota does not apply to U'S.

citizens). A petition for certiorari for Mr. Munaf was filed on

June 13, 2007. See Pet. for Cert. in Munaf v. Geren (No. 06-

1666). The government filed a brief in response September 21,

2007, asking this Court to hold Munaf and grant certiorari

review in Omar, or, alternatively, to grant both petitions. See Br.

in Opp. in Munaf v. Geren (No. 06-1666), at 19. A reply on behalf

of Mr. Munaf is being filed concurrently with this brief in

opposition. Mr. Munaf is represented by the same counsel as Mr.

Omar.

The Court of Appeals also found Mr. Omar’s

challenge to his threatened transfer justiciable, and

unaffected by the rule of non-inquiry. Id. (citing both

Valentine v. United States ex rel. Neidecker, 299 U.S.

5 (1936), and Wilson v. Girard, 354 U.S. 524 (1957)

(per curiam)). Precedent confirmed “that courts may

determine whether the Executive possesses the

necessary authority for transfer.” Id. (citing Holmes v.

Laird, 459 F.2d 1211 (D.C. Cir. 1972)).

Because the parties had neither briefed nor

argued the underlying merits question of whether

statutory or treaty authority for such a transfer

existed, the Court of Appeals held that the issue

should be addressed in the first instance by the

District Court. Jd. at 10.

c. The Court of Appeals also upheld the pre-

liminary injunction over the dissent of Judge Brown.

The majority noted that “the injunction does not bar a

bona fide release of Omar,” but does prohibit a trans-

fer, which might “obviously defeat the district court’s

habeas jurisdiction.” Jd. at 12, 14. So understood, it

merely enables “unremarkable” federal-court review

of U.S. officials’ actions for compliance with U.S. laws

and constitutional provisions. Jd. at 14.

The government’s “primary challenge” to the

preliminary injunction, the appellate court noted, was

the contention that transfer was properly treated as

“a subset of release.” Jd. at 12. Rejecting this soph-

ism, the court highlighted the “obvious and quite

significant difference between transferring Omar to

7 ss ee ee ee

Iraqi authorities and releasing him to walk free from

his current detention.” Jd. ;

The Court of Appeals then rejected Judge

Brown’s contention that no preliminary injunction

could issue because at the close of the habeas pro-

ceeding, and assuming Mr. Omar prevailed, “Iraqi

authorities might arrest Omar the moment U5S.

forces release him” based on a hypothetical US. “‘tip-

off.’” Id. at 12-13. The majority noted that Judge

Brown’s argument rested not on the preliminary

injunction, but on “speculation” about the contours of

a possible permanent injunction. Jd. But, as the

majority cautioned, there is “no way of knowing how

the U.S. military would release Omar if the district

court ruled in its favor.” Id. at 12. “[T]he appearance

of defects in the government’s case or the introduction

of exculpatory evidence” might lead Iraqi authorities

to “decide that Omar is no longer worth prosecuting.”

Id. “Or perhaps by the time the district court ordered

Mr. Omar’s release, Iraqi priorities would have

changed, leaving Iraqi authorities uninterested in

allocating scarce military resources ... to his arrest.”

Id. at 12-13. “[A] preliminary injunction protecting

Omar from the certainty of transfer,” and also of

torture, therefore was proper. Jd. at 13 (emphasis in

original).

For similar reasons, the majority rejected as

“speculative” the dissenting judge’s argument that

final relief would necessarily go beyond release.

“Speculating about the conditions under which the

military might release Omar or the lawfulness of

those conditions is not only premature — the matter

may never arise — but irrelevant” because “the peti-

tion does not seek ‘release-plus’ ... [it] seeks [only

Mr. Omar’s] release from military custody.” Id. at 13-

14 (emphasis added).

d. In dissent, Judge Brown would have affirmed

the district court’s jurisdiction but would have va-

cated the preliminary injunction based on the “practi-

cal equivalence” of transfer and release. Jd. at 18

(opinion of Brown, J.).

e. The government sought en banc review. On

May 24, 2007, the full District of Columbia Circuit

voted to deny rehearing, with two judges dissenting.

See Order Denying Rehearing and Rehearing En

Banc, Omar v. Geren, No. 06-5126 (D.C. Cir. May 24,

2007) (per curiam).

REASONS NOT TO GRANT THE PETITION

The government’s petition, in Question 1, attacks

sub silentio the holding of Hamdi v. Rumsfeld, 542

U.S. 507 (2004). Hamdi reaffirmed the settled rule

that habeas jurisdiction obtains whenever a U.S.

citizen is seized overseas and held in the actual,

physical custody of U.S. officials. After Hamdi, Con-

gress amended the habeas statute twice, both times

preserving U.S. citizens’ plenary habeas entitlement.

The government gives no reason to second-guess

those careful, recent, judgments. Its sole reliance is

on a single per curiam, Hirota, which, as many sub-

sequent cases show, is inapposite.

Nor should this Court grant certiorari on Ques-

tion 2 to review the District Court’s discretionary

grant of preliminary, standstill relief. To do so would

involve fact-bound review of an interlocutory question

absent a circuit split. The District Court had clear

statutory authority to issue the injunction. It acted

well within its sound discretion, carefully considering

fact-bound separation-of-powers concerns. In any

case, the consequences about which the government

complains do not follow from the preliminary injunc-

tion. Rather, they flow from a hypothetical permanent

injunction. Such consequences, should they material-

ize, can be reviewed as an actual, ripe controversy. To

grant review now would encourage future litigants to

use interlocutory appeals to short-circuit this process

to obtain review of issues that may never materialize.

I. The District Court Had Jurisdiction Under

The Habeas Statute.

The District Court properly took jurisdiction over

a habeas corpus petition filed here on behalf of a U.S.

citizen detained in the actual, physical custody of

U.S. officials overseas. This unexceptional result

warrants no certiorari review.

A. The Government’s Attempt To Overrule

Hamdi Sub Silentio Should Be Rejected.

1. It is undisputed that Mr. Omar is a U:S.

citizen in the actual, physical custody of U.S. offi-

cials.’ Further, the government acknowledged to the

Court of Appeals that Mr. Omar’s jailors “operate

‘subject to’ no independent MNF-I authority.” Omar,

479 F.3d at 9 (quoting Tr. 11). Rather, “[t]he govern-

ment agrees with the District Court that Omar is in

the authority and control of the United States.” Tr. at

12; see supra at 3.

In 2004, the Court in Hamdi v. Rumsfeld,

unanimously confirmed the availability of habeas

jurisdiction for a U.S. citizen seized overseas in

multinational military operations. See 542 U.S. at

513 (plurality op.). Zamdi involved a seizure during a

multilateral military operation materially indistin-

guishable from this case. In both instances, U.S.

forces operating as part of a multinational force with

U.N. Security Council sanction seized and detained a

U.S. citizen.‘ The Court held that a citizen seized in a

* The government identifies Mr. Omar as a dual-citizen, as

though it were somehow significant that he was not born in this

country. See, e.g., Pet. 3. But “(uJnder our Constitution, a

naturalized citizen stands on an equal footing with the native

citizen in all respects, save that of eligibility to the Presidency.”

Luria v. United States, 231 U.S. 9, 22 (1913).

* Compare S.C. Res. 1386, 71, U.N. Doc. S/Res/1386

(Dec. 20, 2001) (authorizing an “International Security Force”

to maintain security in Afghanistan) with S.C. Res. 1511,

¥ 13, U.N. Doc. S/Res/1511 (Oct. 16, 2003) (authorizing a

(Continued on following page)

é,

‘

’

“2

multinational military operation overseas can chal-

lenge the factual and legal bases for his detention.

Jurisdiction in this case follows necessarily from

Hamdi.*

2. The Court in Hamdi applied 28 U.S.C.

§ 2241, the federal habeas statute. Both the text of

the statute and the construction it has received from

the Court confirm that actual custody by a U‘S.

official is the sufficient jurisdictional predicate for

habeas review. Since 1789, the Writ has been avail-

able for anyone either “in custody, under or by colour

of the authority of the United States.” Act of Sept. 24,

1789, ch. 20, § 14, 1 Stat. 82 (currently codified at 28

“multinational force” to maintain security in Iraq); S.C. Res.

1546 7 10, U.N. Doc. S/Res/1546 (June 8, 2004) (authorizing the

“multinational force” to take all necessary steps to maintain and

stabilize Iraq); see also S.C. Res. 1378, 9 4, U.N. Doc. S/Res/1378

(Nov. 14, 2001) (calling on U.N. member states to support the

formation of a transition administration and new government in

Afghanistan, including “quick impact” projects and long-term

social and economic assistance).

* In Hamdi, the Court made clear that habeas jurisdiction

did not depend on where the US. citizen was detained. 542 U.S.

at 523-24 (plurality op.). Such a rule, it said, would create “a

perverse incentive” for the government “simply [to] keep citizen-

detainees abroad.” Id. at 524. Therefore, it is irrelevant to

federal habeas jurisdiction that Mr. Omar is held overseas,

unlike Mr. Hamdi. Moreover, the government’s “source of

authority” rule does not contain a geographic element, as

government’s counsel conceded at oral argument below. See Tr.

27-29. Thus, adopting it would require directly overruling

Hamdi, and would foreclose habeas review for any citizen seized

in a multi-national operation, regardless of where he is ulti-

mately detained.

hes Sa i EBs

be Mores ej ae Peers ee

“i. - ey

U.S.C. § 2241(cX(1)). Today, the statutory language

“requires nothing more” than a custodian who will

answer to the court’s command. See Braden v. 30th

Judicial Circuit Court of Ky., 410 U.S. 484, 495

(1973); accord Rasul v. Bush, 542 U.S. 466, 483-84

(2004). Undisputed here is the fact that Mr. Omar’s

custodians, all U.S. officials, “operate ‘subject to’ no

independent MNF-I authority.” Omar, 479 F.3d at 9.°

They certainly obey the federal courts and will an-

swer to its commands.

Twice in the past two years, Congress has

amended the habeas statute to limit jurisdiction in

certain instances when designated non-citizens are

detained overseas. Yet on each occasion, Congress

preserved citizens’ plenary jurisdictional entitlement.

See Military Commissions Act of 2006, § 7, Pub. L.

No. 109-366, 120 Stat. 2600; Detainee Treatment Act

of 2005, § 1005(e), Pub. L. No. 109-148, 119 Stat. 2680

(“DTA”).

3. Nor did Hamdi break with precedent. In-

stead, it confirmed a long line of authority. The

United States has collaborated in many multinational

military operations since World War II with U.N.

* In 2004, General George W. Casey, Jr., sole commander of

the MNF-I, affirmed to Congress that his actions are “subject to

the authority, direction and control of the Commander, U‘S.

Central Command.” Advance Questions for General George W.

Casey, Jr., U.S. Army Nominee for Commander, Multi-National

Force-Iraq, 108th Cong. 3 (2004), available at http://www.senate.

gov/~armed_services/statemnt/2004/June/Casey. pdf.

;

“4

‘

~ ae” eal eee ee | oF St eee

authorization. This Court has not once rejected

habeas petitions arising out of these multinational

operations.

In postwar Germany, for example, occupation

authorities operated under an “Allied high com-

mand,” but with U.S. officials in charge. U.S. citizens

could be charged and sentenced by the “United States

Court of the Allied High Commission for Germany.”

Madsen v. Kinsella, 343 U.S. 341, 343-44 & n.3

(1952). Yet when the rights of citizens so charged

were at stake, federal courts reviewed and ascer-

tained the lawfulness of those Allied courts.

U.S. forces deployed in the Korean War also

operated under a U.N. Security Council mandate and

worked alongside non-American forces.’ Under the

government’s proposed logic, arrests and detentions

carried out in connection to the Korean War would

have been out of jurisdictional bounds. In United

" See S.C. Res. 84, 14 3-5, U.N. Doc. S/Res/84 (July 7, 1950)

(“3. Recommends that all Members providing military forces and

other assistance pursuant to the aforesaid Security Council

resolutions make such forces and other assistance available to a

unified command under the United States of America; 4. Re-

quests the United States to designate the commander of such

forces; 5. Authorizes the unified command at its discretion to use

the United Nations flag in the course of operations against

North Korean forces concurrently with the flags of the various

nations participating....”); see also S.C. Res. 83, U.N. Doc.

S/Res/83 (June 27, 1950); Max Hilaire, United Nations Law and

the Security Council 9, 186 (2005), Louis Henkin, Foreign Affairs

and the United States Constitution 255 (2d ed. 1996) (noting

“unified command” of multinational forces in Korea).

“ia

. *

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

however, the Court held that a district court properly

issued a habeas writ for a citizen detained for crimes

allegedly committed in Korea during U.S. military

operations thee.

More recently, American military forces have

operated under the mantle of international authori-

zations in Haiti and Afghanistan." Hamdi, which

arose from the latter operation, was thus simply the

most recent invocation and confirmation of federal

court jurisdiction to assess the lawfulness of a U.S.

citizen’s detention by U.S. military forces without

regard to the fact that those forces happen to be

operating as part of a multinational coalition.

B. Hirota Creates No Exception To The

Custody Rule For Habeas Jurisdiction.

1. In the teeth of precedent and statute, the

government argues that a nine-sentence per curiam

opinion, Hirota v. MacArthur, 338 U.S. 197 (1948),

creates a previously-undiscovered exception to a

citizen’s right to habeas. Pet. 9, 11-16. The govern-

ment’s argument is that U.S. officials can se*ze

and detain a U.S. citizen and evade habeas review

provided they invoke a foreign-law or international-

law “source of authority.” Pet. 13. The profound

* See, e.g., United Nations, Haiti Facts and Figures (2003),

bttp://www.un.org/Depts/dpko/dpko/co_mission/unmihfacts.html

(.ast visited October 31, 2007).

consequences of this argument cannot be exagger-

ated. As the government concedes, it would not hinge

on the locus on detention. On the contrary, its “source

of authority” reasoning would apply to the detention

of U.S. citizens on U.S. soil. See Tr. 28-30.

Not surprisingly, the Court of Appeals rejected

this argument. It accurately observed that this “Court

... has never cited Hirota for any substantive propo-

sition, much less the one the government claims it

supports.” Omar, 479 F.3d at 7. Quite the contrary,

this Court has repeatediy heard cases concerning

detentions arising out of multinational military

operations overseas. See supra at 17-18. Yet it has

never cited Hirota to forsake jurisdiction.’

2. Hirota in fact stands for a limited technical

proposition about the limits of this Court’s jurisdic-

tion under Article III, Section 2 of the Constitution.

Hirota and his co-petitioners filed original peti-

tions for writs of habeas corpus in this Court. They

did not seek District Court review because a mere

five months beforehand, the Court had held in Ahrens

v. Clark, 335 U.S. 188, 192 (1948), that federal dis-

trict courts lacked jurisdiction to issue the Writ for

* The Court of Appeals for the District of Columbia Circuit

in one early case extended Hirota beyond its holding. See Flick v.

Johnson, 174 F.2d 983 (D.C. Cir. 1949). This extension was not

compelled by the holding of Hirota, however, and is inconsistent

with subsequent cases, including Hamdi.

persons imprisoned outside their territorial jurisdic-

tion. See Br. in Opp. to Motions for Leave to File Pets.

for Writs of Habeas Corpus at 7-8, Hirota v. MacAr-

thur, 338 U.S. 197 (1948) (No. 239) (dated November

1948) (citing Ahrens, and observing that there was no

“person who has ... control and custody ... within

the jurisdiction of any district court of the United

States”).

After oral argument in Hirota, the Court denied

the motions for leave to file the habeas petitions. 338

U.S. at 198. In a per curiam opinion joined by five

Justices, the Court stated that “the courts of the

United States have no power or authority to review,

to affirm, set aside or annul the judgments or sen-

tences imposed on these petitioners.” Jd.

The Court reached this ruling because the Hirota

petitions fell outside the strictly delimited jurisdic-

tional bounds of this Court. Four of the five Justices

who joined the per curiam opinion had already indi-

cated their belief that the petitioners’ motions should

be dismissed specifically because “there is want of

jurisdiction,” and cited the original jurisdiction clause

of Article III. Hirota, 338 U.S. at 876. Only ten days

later these four Justices (plus one other) denied

Hirota’s motion for leave to file. 338 U.S. at 198.

As the four Justices indicated, it was then and is

now black-letter law that the Supreme Court lacks

original jurisdiction over a habeas corpus petition

filed with it directly. See Felker v. Turpin, 518 U.S.

651, 667 n.1 (1996) (Stevens, J., concurring) (“Such a

petition is commonly understood to be ‘originai’ in the

sense of being filed in the first instance in this Court,

but nonetheless for constitutional purposes an exer-

cise of this Court’s appellate (rather than original)

jurisdiction.”); cf: Marbury v. Madison, 5 U.S. (1 Cranch)

137, 175-76 (1803).

But the Court’s appellate jurisdiction is entirely

statutory. In Hirota, as in Ex parte Vallandigham, 68

U.S. 243, 253-54 (1863), there was no statutory

authority to review directly the military tribunal’s

ruling. Moreover, the Court had recently decided in

Ahrens that the federal habeas corpus statute did not

give district courts any jurisdiction over habeas

petitions filed on behalf of persons outside the courts’

territorial jurisdiction. See 335 U.S. 188, 192 (1948).

Hence, this Court could not exercise appellate juris-

diction by that route either.

But that aspect of Ahrens is obsolete. In Braden

v. 30th Judicial Circuit Court of Kentucky, the Court

held that “the language of § 2241(a) requires nothing

more than that the court issuing the writ have juris-

diction over the custodian.” 410 U.S. 484, 495 (1973)

(emphasis added); accord Rasul, 542 U.S. at 483-84.

This case was filed in district court against respon-

dents who are within the federal courts’ jurisdiction

and who have physical custody of Mr. Omar. It there-

fore falls properly within the federal courts’ jurisdic-

tion.

Hirota dealt with the bounds of this Court’s

subject matter jurisdiction against the backdrop of a

now defunct statutory understanding. In arguing

otherwise, the government makes the untenable

assumption that five Justices were ignorant of basic

jurisdictional principles and that four of them said

one thing but then did another.

Most damning of all, the government asks this

Court to ignore an unbroken line of precedent after

Hirota holding citizenship is “a head of jurisdiction

and a ground of protection [that] was old when Paul

invoked it in his appeal to Caesar.” Johnson v. Eisen-

trager, 339 U.S. 763, 769 (1950); accord McElroy v.

United States ex rel. Guagliardo, 361 U.S. 281, 282

(1960) Gurisdiction exercised over U.S. citizen peti-

tion filed by petitioner detained in Morocco); Burns v.

Wilson, 346 U.S. 137, 139 (1953) (citizen petitions

filed from Guam). The government’s “source of au-

thority” rule turns longstanding principle on its head.

It allows the government to violate citizens’ rights by

purporting to stand in another state’s shoes.” This

the government cannot do.

Unless Hamdi is to be overruled, and the coin of

citizenship debased, the government’s claim that a

foreign “source of authority” allows U.S. officials to

Further, the government’s proposed “source of authority”

rule directly contradicts the “immediate custodian” rule that it

pressed with unstinting vigor three years ago in Padilla. See Br.

for Petr., Rumsfeld v. Padilla, 542 U.S. 426 (2004) (No. 03-1027),

at 17-21.

detain U.S. citizens indefinitely should be rejected."

That claim’s unanimous rejection below provides no

warrant for certiorari review.

C. The Opinion Below Opens No Flood-

gates.

The government claims that certiorari review is

needed to dam a (hypothetical) flood of non-citizen

petitions. Pet. 10 & 14-15, n.5. Petitioners respect-

fully suggest that the Court reject this baseless scare

tactic.

1. The Court of Appeals did “distinguish be-

tween aliens and citizens.” Pet. 14. It explicitly said

both “foreign citizenship and criminal conviction”

were relevant to its understanding of Hirota. Omar,

479 F.3d at 7. It thus gave no invitation to non-citizen

petitions. In any case, the habeas statute’s text as

" Indeed, not even the government believes in its proposed

rule. In an October 8, 2007, filing in the District Court, the

government cited the Authorization for Use of Military Force

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

1498, as authority for detaining persons in Iraq; the government

also concedes that were Mr. Omar transferred out of Iraq, it

would be illegal to transfer him to Iraqi custody in the absence

of a treaty. See Response to Order to Show Cause, Omar uv.

Harvey, No. 1:05-cv-02374-RMU (D.D.C. Oct. 8, 2007) (dkt. 44),

at 15. The government also concedes that it lacks the necessary

treaty-based authority to transfer Mr. Omar. See id.; see also

Extradition Treaty, U.S.—Iraq, art. VIII, June 7, 1934, 49 Stat.

3380 (“Under the stipulations of this Treaty, neither of the High

Contracting Parties shall be bound to deliver up its own citi-

zens.”).

amended clearly distinguishes U.S. citizens from non-

citizens, addressing the government’s concern. See 28

U.S.C. § 2241(e). Federal courts simply will not be

deluged with foreign-national habeas petitions as a

result of the judgment below. Pet. 15 n.5.”

2. Moreover, the government’s proposed reading

of Hirota would have the perverse result of rendering

non-citizens detained overseas better off than citizens

such as Mr. Omar. Under the DTA §1005(e)(2(A),

aliens who are not entitled to habeas at least obtain

some administrative and judicial review. By contrast,

on the government’s theory citizens like Mr. Omar

would be entitled to no legal process whatsoever.”

Congress would never have intended such an absurd

result. Cf. Clinton v. City of New York, 524 U.S. 417,

429 & n.14 (1998) (construing statute to avoid “ab-

surd” result).

* In fact, courts have summarily dismissed the handful of

such cases filed. See Pet. 14-15 n.5 (citing cases). And, moreover,

if some problem arises in another case because the federal

courts are seeking “to interfere with the criminal prosecution of

individuals before foreign tribunals,” id. at 15-16, it can be dealt

with then.

" The government does not — and could not — assert that

the hearing Mr. Omar allegedly received as a matter of adminis-

trative grace satisfied the due process floor of Hamdi. See Pet.

14 n.4. The “mimimum requirements of due process” include

“notice” of the charges, “a feir opportunity to rebut the Govern-

ment’s factual assertions before a neutral decisionmaker,” and

counsel — none of which Mr. Omar received. Hamdi, 542 U.S. at

533, 538-39 (plurality op.).

II. Interlocutory Review Of The District

Court’s Standstill Preliminary Injunction

Is Not Warranted.

The government argues that its petition for

certiorari should be granted on the separate question

whether the District Court’s standstill preliminary

injunction was proper. The government argues that

the preliminary injunction does not have a basis in

law, Pet. 17-22, and constitutes an impermissible

judicial intrusion, id. at 22-25."

Certiorari review of the narrow standstill pre-

liminary injunction, however, is unwarranted for

three reasons. First, black-letter law supports a

district court’s authority to issue standstill injunc-

tions to allow adjudication of the merits in a habeas

action. There is no circuit split on this question. The

government does not cite, let alone challenge, the

operative law on point. At best, by invoking the

political question doctrine, it seeks fact-bound re-

weighing of the four preliminary injunction factors.

Second, the government’s argument focuses on

the effects of a final injunction that has not been

litigated and that is as yet hypothetical. This final

injunction may never issue, and the factual conse-

quences of which the government complains may

never arise. If they do, the government will have an

“ Dissenting below, Judge Brown relied on the second point

alone. See Omar v. Harvey, 479 F.3d 1, 19 (D.C. Cir. 2007)

(Brown, J., concurring in part and dissenting in part).

opportunity to seek review in the Court of Appeals

and this Court. Until then, the issue is unripe.

Finally, the government’s petition tries to lever-

age an interlocutory appeal to get a merits ruling on

an issue not pressed, briefed, or addressed below.

This would widen the scope of permissible appellate

review of preliminary injunctions. It would force this

Court into the review of legal questions without the

benefit of lower-court consideration or factual devel-

opment. This attempt should be rejected, and review

on Question 2 should be denied.

A. The District Court Had Authority To

Issue This Standstill Injunction And

Did Not Abuse Its Discretion.

1. The government incorrectly asserts that

“[t]here is no legal basis” for the standstill prelimi-

nary injunction — the sole issue in this interlocutory

appeal. Pet. 17. Two such bases exist.”

First, the District Court correctly invoked the All

Writs Act, 28 U.S.C. § 1651, which provides unques-

tioned authority for a federal court to preserve its

own jurisdiction during a case’s pendency. See Omar,

416 F. Supp. 2d at 28; accord United States v. N.Y.

Tel. Co., 434 U.S. 159, 172 (1977) (“This Court has

repeatedly recognized the power of a federal court to

‘* And as the government concedes, see Pet. 19 n.7, review

of the preliminary injunction here implicates no circuit split.

issue such commands under the All Writs Act as may

be necessary or appropriate to effectuate and prevent

the frustration of orders it has previously issued in its

exercise of jurisdiction otherwise obtained.”) (citing

Harris v. Nelson, 394 U.S. 286, 299 (1969)).

Second, it is well recognized that federal courts

have the power and the obligation to enter interlocu-

tory orders necessary to ensure fair litigation of a

habeas petition. See, e.g., Bracy v. Gramley, 520 U.S.

899, 908-09 (1997) (“‘[Wlhere specific allegations

before the court show reason to believe that the

petitioner may, if the facts are fully developed, be able

to demonstrate that he is ... entitled to relief, it is

the duty of the court to provide the necessary facili-

ties and procedures for an adequate inquiry.’”) (ellip-

sis in original; quoting Harris, 394 U.S. at 300); cf. 28

U.S.C. § 2251(aX(1) (authorizing federal courts to stay

state criminal proceedings pending adjudication of

habeas petitions).

Under these provisions, the District Court un-

questionably had power to do what is done routinely

in extradition proceedings: direct U.S. officials” to

stay their hand, preserving jurisdiction of the legal

and constitutional issues tendered for adjudication.

* Contrary to the government’s insinuations, the injunction

in no fashion directs Iraqi authorities either to do, or to refrain

from doing, anything. Cf. Pet. 23-24. The fact that U'S. officials

cannot hand a suspect to a foreign sovereign temporarily is a

routine occurrence in extradition proceedings. It entails no

entanglement in foreign proceedings.

Cf. Omar, 479 F.3d at 12 (“[CJourts routinely stay

extraditions[.]”) (citing Ntakirutimana v. Reno, 184

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

F.3d 851 (9th Cir. 1996)). Such orders are committed

to the district court’s sound discretion. Omar, 479

F.3d at 14.

The standstill relief entered below is fully sup-

ported by these authorities, and does not warrant

certiorari review.

2. Despite this clear authority, the government

argues that political question concerns warrant this

Court’s immediate interference with the standstill

preliminary injunction. See Pet. 24-25. This argument

for factbound review of the injunction is misplaced for

two reasons.

First, the Court of Appeals followed settled law,

articulated in Hamdi, in rejecting the government’s

separation-of-powers arguments for jurisdictional

ouster. See Omar, 479 F.3d at 9-10 (citing Hamdi, 542

U.S. at 535). This Court in Hamdi held that, absent a

proper suspension of the writ, federal courts have

jurisdiction over habeas actions such as Mr. Omar’s.

Without the power to enter effective orders preserv-

ing the ability to hear claims, this jurisdiction would

be an empty gesture.

Second, the government’s argument in effect

seeks error correction of the scope of the standstill

injunction based on factors the lower court consid-

ered. Cf. Omar, 416 F.Supp. 2d at 29 (weighing

separation-of-powers concerns that the government

’

le a ed i ter ot a) a 7 Pe Te 7 FE A Aa AN cree, Te 5 ee eS PR as Wee ee at i SERRE Oe ae Sen eas eg a

“ ; ; : + y } - eta

here invokes and concluding that under these circum-

stances “the threat of tangible harm to the petitioner

resulting from the court’s failure to act outweighs any

potential harm to the Executive’s exercise of its war

powers”). But this Court does not sit to tinker with

the factual balance of an interlocutory order. Cf.

United States v. Johnston, 268 U.S. 220, 227 (1925).

It should not grant review of fact-bound concerns

about the scope of a particular preliminary injunc-

tion. That is particularly true in this case because all

of the concerns the government raises now can be

addressed in the District Court, which can tailor the

injunctions in light of new evidence. See Judicial

Watch v. Dep't of the Army, 466 F. Supp. 2d 112, 122-

23 (D.D.C. 2006); see also Fed. R. Civ. P. 54(b) (allow-

ing reconsideration of interlocutory orders).

In short, there was nothing the least bit unto-

ward about the standstill preliminary injunction in

this case, an order that takes the “unremarkable”

precaution of ordering petitioners to refrain from

steps that would divest the federal courts of jurisdic-

tion. Omar, 479 F.3d at 14.

B. The Court Should Not Grant Review

Of A Hypothetical Final Injunction To

Issue An Advisory Opinion.

This appeal is from a standstill preliminary

injunction. But the government seeks review by

invoking the specter of consequences flowing from

a hypothetical permanent injunction. See Pet. 10-11,

22-25. It conjures a hypothetical scenario in which

the merits have been adjudicated, a permanent

injunction issued, and Mr. Omar has been released

with “a head start.” Jd. at 22-23. It proposes that such

release would have to be accompanied by a new

prohibition on “sharing information” to supplement

the preliminary injunction in place now. Id. at 23.

And it suggests that an Iraqi process would be

thwarted by this hypothetical final injunction. Jd. at

23."

a nh Re DES Sg 9 hg tid ee

None of these scenarios could occur until a final

judgment on the merits questions. And a permanent

injunction could not issue until the lower court con-

sidered evidence and legal arguments on the merits of

Mr. Omar’s petition and decided in his favor. The

rulings on both the merits and the appropriate rem-

edy would then be subject to Court of Appeals review

on a full record. The government asks this Court to

short-circuit this process by imagining and ruling on

a situation that does not presently exist. But it would

be unprecedented and unwarranted for this Court to

rule on unripe “matter[s that] may never arise.”

Omar, 479 F.3d at 13-14.

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" The government correctly notes it cannot facilitate any

ongoing Iraqi proceedings. Pet. 24. There is no evidence in the

. record, however, that any such proceedings ever began, or that

iraqi authorities have made any move toward their beginning. If

the government should in the future desire to assist the Iraqi

government in some way that is not prejudicial to Mr. Omar, it

will be free to make its proposal to the District Court.

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C. The Court Should Decline To Review A

Merits Question Neither Briefed Nor

Passed On Below.

Finally, the Court should not grant certiorari at

this stage because to do so would expand the scope of

interlocutory review in ways the Court has always

rejected. In effect, the Court would be inviting the use

of interlocutory reviews of preliminary injunctions in

order to obtain preemptive resolution of the final

merits of a case.

1. In granting a preliminary injunction, the

District Court made clear that it was not rendering a

final ruling on the merits of Mr. Omar’s habeas

petition. See Omar, 416 F. Supp. 2d at 23. In that

forum, and then on appeal, the government argued

only that the court lacked jurisdiction.

Since the government did not even argue the

merits below, the Court of Appeals, quite under-

standably, expressly declined to opine on the merits

question “whether Omar’s transfer . . . requires treaty

or statutory authorization,” and whether such author-

ity exists. Omar, 479 F.3d at 10. Consequently, this

Court has no reasoned lower court opinion on the

matter to review.

Now, however, the government presses the merits

question whether it has power to transfer Mr. Omar

to Iraqi custody and torture. See Pet. 17-25. It frames

its challenge as a request for a ruling “on the merits

of... achallenge [to Mr. Omar’s transfer].” Jd. at 22.

Having pressed only jurisdictional grounds below,

the government should not be permitted to switch

tracks now. This Court has been reluctant to deal

with non-jurisdictional arguments not properly

pressed and passed on below. Rather, “where the

ground presented ... has not been raised below,” the

Court reaches that issue “‘only in exceptional cases.’”

Heckler v. Campbell, 461 U.S. 458, 469 n.12 (1983)

(quoting McGoldrick v. Compagnie Generale Transat-

lantique, 309 U.S. 430, 434 (1940)); see also Grupo

Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,

527 U.S. 308, 319 n.3 (1999) (disfavoring petitioners’

arguments not pressed or passed on below); Okla-

homa Tax Comm’n v. Chickasaw Nation, 515 U.S.

450, 456 (1995) (same); cf. Granfinanciera, S.A. uv.

Nordberg, 492 U.S. 33, 38-39 (1989) (same for re-

spondents’ arguments).

To be sure, likelihood of success on the merits is

one element in the discretionary calculus as to

whether a preliminary injunction should issue. But

the Court has stressed that 28 U.S.C. § 1252 “does

not give the Court license to depart from established

standards of appellate review. If the underlying

constitutional question is close, therefore, [it] should

uphold the injunction and remand for trial on the

merits.” Ashcroft v. ACLU, 542 U.S. 656, 664-665

(2004) (citation and quotation marks omitted). To

leap-frog to the merits here would forego the model of

“prudent and incremental” adjudication that this

Court has previously demanded. Hamdi, 542 U.S. at

539 (plurality op.). There is no reason to break with

that principle here.

2. In any case, the government’s merits argu-

ment does not withstand scrutiny. The government

relies on Wilson v. Girard, 354 U.S. 524 (1957) (per

curiam). See Pet. 18-20." But Wilson does not aid the

government’s claim. In Wilson, the question presented

was whether the Uniform Code of Military Justice

trumped an executive agreement that was signed

pursuant to a 1952 treaty and that allowed the trans-

fer of a U.S. soldier. See Wilson, 354 U.S. at 530,

overruling Girard v. Wilson, 152 F.Supp. 21, 26

(D.D.C. 1957) (describing argument). Wilson’s holding

— that no statute affirmatively precluded transfer —

does not support the government’s contention here

that no statute or treaty is needed for a citizen’s

transfer.”

* In the Court of Appeals, the government cited Wilson only

once in its brief — and then only in a parenthetical to a quotation

of another case. See Brief for Appellants, at 36, Omar v. Harvey,

479 F.3d 1 (D.C. Cir. 2007) (No. 06-5126). The government’s

argument at that point was that a line of cases demonstrated

that courts “refus[ed], for separation of powers reasons, to

review the Executive’s decision to turn over an individual to a

foreign country for criminal prosecution.” Jd. at 37. This was an

argument about jurisdiction, not the merits.

* Nor does the “rule of non-inquiry” preclude jurisdiction.

The “rule of non-inquiry” merely delimits merits inquiries into a

foreign criminal process once Congress sanctions transfers to

that jurisdiction. See Lo Duca v. United States, 93 F.3d 1100,

1103 (2d Cir. 1996) (rule of non-inquiry operates within a “legal

framework” for extradition that “interpose[s) the judiciary

(Continued on following page)

The government’s argument logically entails the

conclusion that the United States can seize and hand

over its citizens for foreign criminal prosecution

whenever the alleged crime is committed on foreign

soil — even if the citizen suspect is in the United

States — given the “plenary” nature of the other

sovereign’s authority. Pet. 18 (citation omitted). But

this is not the law. See Valentine v. United States, 299

U.S. 5, 9 (1936) (“[I]n the absence of a conventional or

legislative provision, there is no authority vested in

any department of the government to seize a fugitive

criminal and surrender him to a foreign power.”)

(citation and quotation marks omitted).”

between the executive and the individual”). It does not eliminate

the need for legal sanction, and does not trump the rule that

U.S. officials cannot hand over a U.S. citizen to another sover-

eign knowing that he will be subject to treatment that shocks

the conscience in violation of the substantive component of the

Due Process Clause. See, e.g., Rosado v. Civiletti, 621 F.2d 1179,

1195-96 (2d Cir. 1980) (extradition cannot “expose [American

citizen) to procedures or punishment ‘antipathetic to a federal

court’s sense of decency’”) (quoting Gallina v. Fraser, 278 F.2d

77, 79 (2d Cir. 1960)); see also Khouzam v. Hogan, 497 F. Supp.

2d 615, 624-26 (M.D. Pa. 2007) (finding procedural due process

and substantive due process challenges to a removal decision

cognizable where torture is concerned).

” The government’s proposed new rule would also destabi-

lize expectations of U.S. military personnel, contractors, and

civilians stationed overseas, who would find themselves sud-

denly exposed to the unchecked risk of transfer to foreign hands.

See, e.g., Starks v. Seamans, 334 F. Supp. 1255, 1256 (E.D. Wisc.

1971) (issuing a temporary restraining order against the U.S.

transfer of a U.S. soldier to Chinese custody following criminal

trial was “a mockery of justice”); see also Williams v. Rogers, 449

(Continued on following page)

3. The government, moreover, proposes to have

this Court adjudicate this case without an evidentiary

record. But to do so would be unjust, and would also

unfairly disadvantage Mr. Omar.

As a result of conditions imposed by his jailers,

Mr. Omar has never had a chance to develop the facts

of this case. To date, he has not as yet even had

access to his counsel, much less received production of

discovery materials, including a return to the peti-

tion, that the government long ago represented it

would provide.” As a result, factual issues related to

both the merits (and to the government’s speculations

about a permanent injunction) remain unresolved.

Critically, Mr. Omar has had no opportunity to dem-

onstrate his innocence of the allegations against him

and the unreliability of the government’s evidence.

He has had no chance to develop a full record of

torture in Iraqi custody. Nor has he been permitted

to produce facts showing that the government’s

F.2d 513, 516, 521 (8th Cir. 1971) (where petitioner airman

sought review of transfer to Philippine authorities, preliminary

injunction granted to permit litigation, and vacated only when

federal courts had concluded that the international agreement

concerning transfers “meets the fiat of Valentine”).

*" Only on October 8, 2007, did the government set forth

how visitation might occur. Counsel now are negotiating in the

hope of expeditiously visiting Mr. Omar. The District Court has

ordered disclosure of long-promised medical records and photo-

graphs pertaining to Mr. Omar’s treatment while in US.

custody. See Omar v. Harvey, No. 1:05-cv-02374-RMU (D.D.C.

Sept. 28, 2007) (dkt. 42).

speculations about a permanent injunction are all

unfounded.

For the Court to adjudicate this case’s complex

statutory and constitutional questions without the

benefit of factual development would be both impru-

dent and profoundly unfair. It is simply not the

American system “to license one side of a debate to

fight freestyle, while requiring the other to follow

Marquis of Queensberry rules.” R.A.V. v. City of St.

Paul, 505 U.S. 377, 392 (1992).

4. Moreover, granting certiorari on a merits

question from an appeal on purely jurisdictional

grounds would create a strong incentive for other

litigants to take interlocutory appeals in hopes of

being able to evade the final judgment rule. But this

Court has cautioned against precisely that tempta-

tion: “Appeal gives the upper court a power of review,

not one of intervention. So long as the matter re-

mains open, unfinished or inconclusive, there may be

no intrusion by appeal.” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949). Even in the

criminal context, the gateways to interlocutory review

have been guarded “with the utmost strictness.”

Midland Asphalt Corp. v. United States, 489 U.S.

794, 799 (1989) (internal quotation marks and cita-

tion omitted); see also Abney v. United States, 431

U.S. 651, 656 (1977) (maintaining “there has been a

firm congressional policy against interlocutory or

‘piecemeal’ appeals and courts have consistently given

effect to that policy”). The government asks this

Court to set aside these strong considerations to

reach an issue that has neither been pressed nor

passed on below — and that is, to boot, not yet ripe for

review. Its request should be denied.

CONCLUSION

In Hamdi, the Court stated three years ago that

“a state of war is not a blank check for the President

when it comes to the rights of the Nation’s citizens.”

Hamdi, 542 U.S. at 536. Today, the government

petitions this Court for precisely that “blank check” —

albeit no longer denominated in U.S. dollars. Peti-

tioners respectfully urge that there is no reason for

the Court to reconsider Hamdi. And there is certainly

no reason for it to review the District Court’s sound

exercise of discretion in issuing a timited standstill

injunction.

The petition should be denied.

Respectfully submitted,

JOSEPH MARGULIES*

MACARTHUR JUSTICE CENTER

NORTHWESTERN UNIVERSITY

SCHOOL OF LAW

357 East Chicago Avenue

Chicago, IL 60611

Telephone: (312) 503-0890

Facsimile: (312) 503-1272

Aziz Z. Hug

JONATHAN HAFETZ

BRENNAN CENTER FOR JUSTICE

NEw YORK UNIVERSITY SCHOOL OF LAW

161 Avenue of the Americas, 12th Floor

New York, NY 10013

Telephone: (212) 998-6730

Facsimile: (212) 995-4550

SusAN L. BURKE

KATHERINE HAWKINS

BuRKE O’NEIL LLC

4112 Station Street

Philadelphia, PA 19127

Telephone: (215) 487-6590

Facsimile: (215) 482-0874

Eric M. FREEDMAN

. 250 West 94th Street

New York, NY 10025

Telephone: (212) 665-2713

Facsimile: (212) 665-2714

VINCENT MOccIo

AMY MAGID

ROBINS, KAPLAN, MILLER &

CrrEs! L.L.P.

2800 LaSalle Plaza

Minneapolis, MN 55402

Telephone: (612) 349-8500

Facsimile: (612) 339-4181

Counsel for Respondents

*Counsel of Record

Dated: November 5, 2007

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SANDRA K. OMAR,

# 8 AbduRahman bin Samurrah St.

Sweileh, Amman,

Jordan 11910

AHMED S. OMAR

624A Smithdale Drive

Raleigh, NC 27606

as Next Friends of

SHAWQI AHMAD OMAR,

Camp Bucca, Iraq;

Petitioners,

FRANCIS J. HARVEY,

Secretary ci ihe United States Army

101 Army Pentagon

Room 3E-506

Washington, DC 20301-0101;

MAJOR GENERAL

WILLIAM H. BRANDENBURG,

Deputy Commanding General

(Detainee Operations)/

Commanding General,

Task Force 134,

Multi-National Force-Iraq;

LIEUTENANT COLONEL

TIMOTHY HOUSER,

105th Military Police Battalion,

Camp Bucca, Lrag 09375;

Respondents.

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CIVIL

ACTION

NO.

PETITION

FOR WRIT

OF HABEAS

CORPUS

App. 2

INTRODUCTORY STATEMENT

Petitioners Sandra K. Omar (“Sandra”) and

Ahmed S. Omar (“Ahmed”) seek a writ of habeas

corpus on behalf of and as next friends of Shawqi

Ahmad Omar (“Shawgi” or “Mr. Omar”). Sandra

is Shawqi’s wife and Ahmed is Shawgi’s adult

son. They are among Mr. Omar’s closest living

relatives.

Mr. Omar is a United States citizen who has been

illegally imprisoned by the United States mili-

tary in Iraq for more than one year. He has been

detained virtually incommunicado, without no-

tice, without access to counsel, without charge,

without warrant, and without even elementary

due process. He has repeatedly asserted his inno-

cence and requested legal counsel. Because these

requests have been unavailing, his wife and son,

both United States citizens, petition this Court

for a writ of habeas corpus on Mr. Omar’s behalf.

On information and belief, Mr. Omar was living

in Baghdad, Iraq with his ten-year-old-son when

he was arrested at his home on October 29, 2004.

After more than twelve months of detention, Mr.

Omar continues to be held in United States de-

tention at Camp Bucca, in southern Iraq. Mr.

Omar’s family members have not received any in-

formation from his captors about the duration or

legal basis for his detention, despite their re-

peated requests.

The United States Constitution, the laws of the

United States, and the binding obligations of

international law all prohibit the United States

from arresting its citizens and denying them

App. 3

access to counsel and to any legal process by

which they may challenge the basis of their de-

tention. Mr. Omar’s continued detention, now

more than one year’s duration, violates numerous

constitutional, statutory, and international law

provisions, including:

a) The fundamental right to due process of law

guaranteed by the Fifth Amendment of the

United States Constitution;

b) The fundamental right to be released absent

a criminal proceeding or judicial process un-

der the Suspension Clause of the United

States Constitution, Article I, § 9, cl. 2;

c) The fundamental right to assistance of coun-

sel protected by the Fifth and Sixth Amend-

ments;

d) The right to be free from arbitrary and

indefinite executive detention pursuant to

the Citizen Non-Detention Act, 18 U.S.C.

§ 4001(a); and

e) The right to be free from arbitrary and in-

definite detention as guaranteed under, inter

alia, the International Convention on Civil

and Political Rights and customary interna-

tional law, including the customary interna-

tional law of armed conflict.

Accordingly, Petitioners Sandra and Ahmed

Omar respectfully seek relief from this Court in

the form of a writ of habeas corpus. Petitioners

specifically request that this Court issue such a

writ compelling Respondents to give Mr. Omar

access to counsel, and either to release Mr. Omar

II.

App. 4

or to provide a lawful basis for his continued de-

tention.

JURISDICTION AND VENUE

Petitioners invoke this Court’s jurisdiction pur-

suant to 28 U.S.C. §§ 2241(a), (cX1) & (cX3); 2242

and 2243. In addition, this Court has jurisdiction

under the United States Constitution, Article I,

§ 9, cl. 2 (the Suspension Clause), Article III, and

the Due Process Clause of the Fifth Amendment

because those provisions entitle Petitioners to a

judicial] forum in which to contest the legal valid-

ity of Mr. Omar’s detention. Petitioners further

invoke this Court’s jurisdiction under 28 U.S.C.

§§ 1331, 1350, 1651 (the All Writs Act), §§ 2201 &

2202 (the Declaratory Judgment Act).

6. [sic] Mr. Omar is legally entitled to challenge his

detention. The United States Supreme Court re-

cently held that federal habeas corpus jurisdic-

tion “requires nothing more” than a claim that a

petitioner is “being held in federal custody in vio-

lation of the laws of the Ufiited States” once per-

sonal jurisdiction over a custodian is established.

Rasul v. Bush, 543 U.S. 466, __, 124 S. Ct. 2688,

2698 (2004).

Camp Bucca is within the plenary and exclusive

“jurisdiction or dominion exercised in fact” of the

United States, such that this Court has jurisdic-

tion over a claim brought by an American citizen

imprisoned there. Id. at 2697.

This Court has personal jurisdiction over Re-

spondents because they are officers or agents of

iit.

10.

11.

App. 5

the United States carrying out their responsibili-

ties in the District of Columbia, having substan-

tial contacts in the District, and being physically

located within this Court’s territorial jurisdiction.

Venue is proper in the District of Columbia for

this writ of habeas corpus because one or more of

the Respondents resides within the jurisdiction of

this Court and is amenable to service of process

in the district. 28 U.S.C. §§ 1391(a), (b) & (e).

PARTIES

Petitioner Sandra K. Omar (“Sandra”) is Shawqi

Omar’s wife and an American citizen who cur-

rently resides in Amman, Jordan. Her declara-

tion is attached as Exhibit 1. Sandra has

repeatedly sought information about and access

to her husband since his arrest. Exhibit 1 (San-

dra Omar Decl.) at 99 11-15; 21-23; 25; 29.

United States military authorities have failed to

provide Sandra with any reason for Mr. Omar’s

continued detention. Because Mr. Omar has been

denied access to legal counsel and to the courts of

the United States, Sandra acts as his next friend.

See id. at JJ 19; 26-28.

Petitioner Ahmed Omar (“Ahmed”) is Mr. Omar’s

eldest son, and an American-born United States

citizen who resides in North Carolina. His decla-

ration is attached at Exhibit 2. Ahmed has been

deeply concerned about his father’s health and

safety since the beginning of Mr. Omar’s deten-

tion, and has been one of a handful of close rela-

tions who has received correspondence from Mr.

Omar, and who has attempted to correspond with

ay >

12.

13.

App. 6

Mr. Omar. See Exhibits 6-9; 15 (correspondence

from Shawgi Omar to Ahmed Omar). Because

Mr. Omar has been denied access to counsel and

to the courts of the United States, Ahmed acts as

his next friend.

Petitioner Shawqi Omar is a naturalized citizen

of the United States of America. His United

States Passport number is 710391701. See Ex-

hibit 3 (copy of passport). His naturalization

number is 11958854. See Exhibit 4 (copy of natu-

ralization certificate). He is incarcerated in

United States military custody at Camp Bucca

Theater Internment Facility in the vicinity of

Umm Qasr, in southern Iraq. On information and

belief, his detainee number at Camp Bucca is

200165. See Exhibit 1 (Sandra Omar Decl.) at

{ 16. Mr. Omar has requested that his captors

provide him with counsel, but to date has been

denied access to counsel, despite having invoked

his right to counsel several times in letters to his

family. See infra at | 29 (describing Mr. Omar’s

repeated attempts to obtain counsel).

Petitioners Ahmed and Sandra Omar are dedi-

cated to representing the interests of Shawgqi

Omar, with whom they share a close, familial re-

lationship. By contrast, Mr. Omar cannot review,

sign, or approve this Petition or appear in his

own behalf because he remains in almost incom-

municado confinement at Camp Bucca, Iraq.

Moreover, Mr. Omar lacks access to an attorney

or to United States courts, despite his repeated

requests for counsel. Denied all access to the

United States Consular Service and provided

only intermittent contact with representatives of

Ree

14,

15.

App. 7

the International Committee of the Red Cross

(“ICRC”), Mr. Omar’s sole contact with the out-

side world is via sporadic telephone calls (six over

the course of a year) and heavily censored hand-

written correspondence to his family in commu-

nications that are restricted by the military au-

thorities to “family news only.” In short, Mr.

Omar is completely incapable of acting on his

own behalf. Accordingly, Ahmed and Sandra

Omar, his son and wife respectively, file suit on

his behalf.

Respondent Francis J. Harvey is the Secretary of

the United States Army. Respondent Harvey is

the senior official of the Department of the Army

and is responsible for all matters related to the

United States Army. Respondent Harvey has au-

thority over the custody and control of United

States Armed Forces detainee operations in Iraq,

including those held at Camp Bucca and the cus-

todian responsible for Mr. Omar’s detention. He

is sued in his official capacity.

Respondent Major General William H. Branden-

burg is Deputy Commanding General of Detainee

Operations and Commanding General of Task

Force 134, Multi-National Force-Iraq. Respon-

dent Brandenburg has responsibility for detainee

operations for United States Armed Forces in

Iraq. Respondent Brandenburg is charged with

maintaining custody and control over all of the

approximately 11,000 prisoners of the United

States Army in Iraq, including those at Camp

Bucca. He is sued in his official capacity.

16.

17.

18.

App. 8

Respondent Lieutenant Colonel Timothy Houser

is with the 105th Military Police Battalion and is

the commanding officer at Camp Bucca, Iraq. Re-

spondent Houser is Shawgqi’s immediate custo-

dian at Camp Bucca.

STATEMENT OF FACTS

A. Background to Mr. Omar’s Arrest

Shawqi Omar is an American citizen. Born to

Jordanian parents in Kuwait on December 17,

1961, Mr. Omar came to the United States on a

student visa in 1979 at age seventeen. See Ex-

hibit 1 (Sandra Omar Decl.) at J 4. In 1983, he

married a United States citizen, Sandra Kay Sul-

zle (now Sandra Omar), in Mobridge, South Da-

kota. See id. at J 3. With his new wife, Mr. Omar

moved to Minnesota, where he served in the

Minnesota National Guard. Jd. He became a

United States citizen on November 17, 1986. See

Exhibit 4. He and Sandra have six children to-

gether, all of whom are United States citizens.

See Exhibit 1 (Sandra Omar Decl.) at J 7.

At some point following the removal of the Sad-

dam Hussein dictatorship, Mr. Omar traveled to

Iraq with his ten-year-old son, Salahedin, seek-

ing contract work in the reconstruction of that

country. See Exhibit 1 (Sandra Omar Decl.) at

{ 9. On information and belief, he intended to re-

turn to the United Arab Emirates, where Peti-

tioner Sandra Omar was living at the time, in

time for the Eid holiday in November 2004.

19.

20.

21.

App. 9

B. Omar’s Arrest and Detention

United States soldiers arrested Mr. Omar in front

of his ten-year-old son at his Baghdad residence

on October 29, 2004. See Exhibit 1 (Sandra Omar

Decl.) at J 11. Mr. Omar was beaten by soldiers in

front of family members during the course of the

arrest. Id.

Since October 29, 2004, Mr. Omar has been held

by United States Armed Forces in Iraq, while his

family has received no formal notification of the

grounds for his d»tention. See Exhibit 2 (Ahmed

Omar Decl.) at { 8. Mr. Omar was initially held

at Camp Cropper, which is close to Baghdad In-

ternational Airport, and is currently being held

at Camp Bucca, near Umm Qasr. See Exhibit 1

(Sandra Omar Decl.) at J 16; Exhibit 5 (May 19,

2005 letter from Amman ICRC).

C. Petitioners’ Attempts To Contact Mr.

Omar

On or about November 10, 2004, Sandra Omar

learned from family that her husband had been

arrested. See Exhibit 1 (Sandra Omar Decl.) at

q 11. At that time, Sandra was also advised that

the same United States forces had confiscated

her son Salahedin’s United States passport. After

much difficulty, the ICRC was able to secure

Shawgqi’s signature on the form needed to re-

trieve Salahedin’s passport. Sandra received the

passport in May 2005, over six months after it

had been confiscated. Jd. at J 22.

22.

23.

24.

App. 10

Sandra contacted the American Embassy in

Baghdad, Iraq, seeking information about her

husband’s whereabouts and the reasons for his

detention. See Exhibit 1 (Sandra Omar Decl.) at

q 11. On December 22, 2004, Marie Damour,

United States Consul in Baghdad, informed San-

dra that Mr. Omar was being held “under United

States military care, custody, and control,” and

that he had recently been seen by the ICRC. See

id. at J 13.

Sandra Omar communicated with Ms. Damour

several times (via electronic mail and telephone)

between December 6, 2004 and April 4, 2005. On

February 16, 2005, almost four months after

Shawqi Omar was first arrested and imprisoned

by United States Armed Forces in Iraq, Ms. Da-

mour informed Sandra that the United States

military had denied the United States Consular

Service’s request to meet with Shawgqi. See Ex-

hibit 1 (Sandra Omar Decl.) at J 15.

On January 12, 2005, Ms. Damour informed

Sandra Omar by email that she had received

verbal agreement from the detaining authority to

visit Mr. Omar. See Exhibit 1 (Sandra Omar

Decl.) at 9 14. Three months later, however, Ms.

Damour was still in the process of trying to se-

cure permission from the United States military

to see Mr. Omar. On April 4, 2005, she emailed

Sandra and stated that the United States Armed

Forces had denied the United States Consul visi-

tation permission. Describing her efforts, Ms.

Damour stated that she was “afraid that we have

been stymied at every turn.” Id. at 7 15.

25.

26.

27.

28.

App. 11

On October 27, 2005, Mr. Omar was transferred

temporarily to Abu Ghraib prison near Baghdad,

where he was visited by United States consular

personnel. He was not given access to a lawyer at

this time. His family was not informed in ad-

vance of the visit. See Exhibit 1 (Sandra Omar

Decl.) at J 24.

Mr. Omar has been permitted to correspond with

his family only via handwritten letters and via

six brief telephone calls to his wife Sandra and

other family members. Written correspondence is

transmitted through the ICRC. Many of Shawgqi

Omar’s letters to his relatives, which the military

authorities limit to “family news only,” contain

redacted or blacked-out text. See, e.g., Exhibit 6

(April 29, 2005 letter from Shawqi Omar to Ah-

med Omar).

Mr. Omar has been subjected to days of interro-

gation without a lawyer present against his ex-

press requests. Mr. Omar stated that he had

“requested [a lawyer] the first min[ute] [he] was

arrested.” Exhibit 7 (March 18, 2005 letter from

Shawgi Omar to Ahmed Omar). In a March 11,

2005 letter, Mr. Omar has stated that he has

been questioned “for 8 days with no lawyer” even

though “I asked them to get me a lawyer over

here.” Exhibit 8 (March 11, 2005 letter from

Shawgi Omar to Ahmed Omar).

Not all the correspondence from Mr. Omar’s

family reaches him in Camp Cropper and Camp

Bucca. In a February 11, 2005 letter addressed to

Ahmed, Mr. Omar asserted that he had not

received any letters from family members. See

29.

App. 12

Exhibit 9 (February 11, 2005 letter from Shawgqi

Omar to Ahmed Omar). On May 20, 2005,

Shawqi indicated that he had only received

eleven letters from his family during the previous

seven months. See Exhibit 10 (May 20, 2006 letter

from Shawgi Omar to Sandra Omar).

D. Requests for Counsel and Assertions of

Innocence

Mr. Omar has requested counsel on at least seven

occasions, as evidenced by correspondence with

his family. See Exhibit 13 (March 18, 2005, letter

from Shawqgi Omar to Sandra Omar) (stating

that “my only Demand is to see a Lawyer” and

that Mr. Omar had been requesting a lawyer “for

the last 5 months, But nothing”); id. (“[M]y only

Demand is to see a Lawyer”); see also Exhibit 7

(March 18, 2005 letter from Shawqi Omar to Ah-

med Omar) (“I have to have a lawyer ASAP.”) Ex-

hibit 8 (March 11, 2005 letter from Shawgi Omar

to Ahmed Omar) (“You need to find a lawyer to

take my case in the States”); Exhibit 9 (February

11, 2005 letter from Shawgi Omar to Ahmad

Omar) (requesting Ahmed to find “any one willing

to be my lawyer in here”); Exhibit 6 (April 29,

2005 letter from Shawqi Omar to Ahmed Omar)

(asking Ahmed “to sue everyone and contact every

newspaper”); Exhibit 11 (May 6, 2005, letter from

Shawgi Omar to Sandra Omar) (noting that he

“didn’t see any lawyer”); Exhibit 12 (April 22,

2005, letter from Shawqi Omar to Sandra Omar)

(“I need a lawyer for my case in the USA, I have

not seen any lawyer”).

30.

31.

32.

33.

34.

App. 13

Mr. Omar expressed the gravity of his request for

counsel in the form of a hunger strike, telling his

captors that he would not eat until he got a law-

yer. He wrote to Ahmed that he would take “No

food, water, Medicine, until I see a lawyer.” Ex-

hibit 7 (March 18, 2005 letter from Shawqi Omar

to Ahmed Omar).

Mr. Omar also continually asserted that he is

innocent of wrongdoing. In a May 20, 2005 letter

to his wife, for example, he emphatically insisted

that “I did not do anything wrong.” Exhibit 10

(transcript of May 20, 20085, letter from Shawgi

Omar to Sandra Omar).

E. Conditions of Mr. Omar’s Confinement

Mr. Omar has only sporadic visits from the ICRC,

which monitors detention conditions and prison-

ers’ well-being in Iraq. In a letter dated February

11, 2005, Mr. Omar indicated he had had no con-

tact with the ICRC for more than two months.

See Exhibit 9 (February 11, 2005 letter from

Shawgi Omar to Ahmed Omar).

Given the intermittent and fragmentary commu-

nications from Mr. Omar, Petitioners Sandra and

Ahmed are deeply concerned about Mr. Omar’s

physical and psychological well being after more

than twelve months of detention by the United

States military in Iraq. See Exhibit 1 (Sandra

Omar Decl.) at 929; Exhibit 2 (Ahmed Omar

Decl.) at J 10.

Mr. Omar has explained that he had been on a

hunger strike taking only liquids: “[O]n the 17th

35.

36.

App. 14

off [sic] March 2005, I started a full strike where

I will not take anything. No food, No liquid, No

medicine, No IV.” Exhibit 13 (March 18, 2005, let-

ter from Shawqi Omar to Sandra Omar). The

same day, Mr. Omar wrote to his son that he

would remain on a “full strike[.] No food, water,

Medicine, until I see a lawyer.” Exhibit 7 (March

18, 2005 letter from Shawgi Omar to Ahmed

Omar).

Mr. Omar has been held in solitary confinement,

his health is deteriorating, and he has lost a sub-

stantial amount of weight. See, e.g., Exhibit 14

(July 22, 2005 letter from Shawgqi Omar to San-

dra Omar) (Mr. Omar is in solitary confinement);

Exhibit 8 (March 11, 2005 letter from Shawqi

Omar to Ahmed Omar); Exhibit 9 (February 11,

2005 letter from Shawqi Omar to Ahmed Omar);

Exhibit 15, (January 6, 2005 letter from Shawgi

Omar to Ahmed Omar). In a further letter dated

July 22, 2005, Shawgqi wrote that he is “in soli-

tary in Bucca [and] my health is not good.... ”

Exhibit 14 (true transcript of July 22, 2005 letter

from Shawgqi Omar to Sandra Omar). Four

months earlier, he had stated that he had “al-

ready lost 60 lbs.” Exhibit 7 (March 18, 2005 let-

ter from Shawqi Omar to Ahmed Omar); see also

Exhibit 11 (May 6, 2005, letter from Shawgqi

Omar to Sandra Omar) (noting that Mr. Omar

had lost 35 lbs).

F. Fear of Unlawful Transfer

Petitioners Sandra and Ahmed have reason to

believe that the United States military may turn

37.

38.

39.

40.

App. 15

Mr. Omar over to the custody of Iraqi authorities

in an effort to evade the strictures of United

States law. On or about June 22, 2005, Mr. Omar

was allowed a brief opportunity to speak by tele-

phone with his wife. During that conversation,

Mr. Omar told her that he had been told that he

may be transferred to the custody of Iraqi au-

thorities. See Exhibit 1 (Sandra Omar Decl.) at

qi 17, 18.

On November 1, 2005, Petitioner Sandra was

informed by email by the United States Consul

that “under Iragi law, [{Mr. Omar] has a right to

legal counsel should he appear before an investi-

gating judge on criminal charges.” Petitioner

Sandra believes this refers to a potential transfer

to Iraqi custody. See Exhibit 1 (Sandra Omar

Decl.) at J 25.

Petitioners Sandra and Ahmed, who are Shawai’s

closest family members, know Mr. Omar wishes

them to proceed via a habeas corpus petition to

secure his release.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

UNLAWFUL DETENTION UNDER

THE FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

Respondents’ arrest and arbitrary, indefinite

detention without process of Mr. Omar violates

41.

42.

43.

App. 16

the “most elementary of liberty interests — the in-

terest in being free from physical detention by

one’s own government.” Hamdi v. Rumsfeld, 542

U.S. 507, _, 124 S.Ct. 2633, 2646 (2004)

(O’Connor, J., plurality op.). The United States

Constitution affords Shawqi Omar, as a United

States citizen, its full protection.

The United States’ detention of Mr. Omar is

arbitrary and unlawful in at least two respects.

First, Mr. Omar has not been afforded access to

counsel or any adequate procedure or an oppor-

tunity to be heard or notice to permit him to

show his innocence of any and all wrongdoing.

The Due Process Clause of the Fifth Amendment

to the Constitution guarantees Mr. Omar the

right to adequate notice of the basis for his de-

tention and a meaningful opportunity to be heard

to challenge his detention. Because Mr. Omar has

been denied notice and any opportunity to be

heard, his detention violates procedural due

process.

Second, the United States has not charged Mr.

Omar with a crime or otherwise articulated the

grounds for Mr. Omar’s detention. The unjusti-

fied detention of a person without trial is a viola-

tion of substantive Due Process rights.

SECOND CLAIM FOR RELIEF

UNLAWFUL DETENTION UNDER

THE SUSPENSION CLAUSE

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

a |

App. 17

44. Respondents’ arrest and continued detention of

45.

46.

47.

Mr. Omar violates the United States Constitu-

tion, Habeas Corpus Suspension Clause, Article

I, § 9, cl. 2, because the Suspension Clause guar-

antees Mr. Omar the right to be charged crimi-

nally or released. Mr. Omar has been and

continues to be detained without charge.

Respondents’ arrest and continued detention of

Mr. Omar violates the Habeas Corpus Suspen-

sion Clause, Art. I, § 9, cl. 2, because the Suspen-

sion Clause guarantees Mr. Omar the right to an

adequate and meaningful judicial process. Mr.

Omar has been and continues to be detained

without such a process.

THIRD CLAIM FOR RELIEF

UNLAWFUL DETENTION CONTRARY

TO THE CITIZEN NON-DETENTION ACT

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

Respondents’ arrest and detention of Mr. Omar

violates the Citizen Non-Detention Act, 18 U.S.C.

§ 4001(a). The Act commands that: “No citizen

shall be imprisoned or otherwise detained by the

United States except pursuant to an Act of Con-

gress.” No Act of Congress authorizes the contin-

ued detention of Mr. Omar, and therefore his

continued detention violates the Citizen Non-

Detention Act.

48.

49,

51.

App. 18

FOURTH CLAIM FOR RELIEF

UNLAWFUL DETENTION

CONTRARY TO ARMY REGULATIONS

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

Respondents’ arrest and detention of Mr. Omar

violates Army Regulation 190-8, which prohibits

the prolonged detention of civilians. See Army

Reg. 190-8 at 1-6(g) (“Persons who have been de-

termined by a competent tribunal not to be enti-

tled to prisoner of war status may not be

executed, imprisoned, or otherwise penalized

without further proceedings to determine what

acts they have committed and what penalty

should be imposed.”)

FIFTH CLAIM FOR RELIEF

PROLONGED ARBITRARY DETENTION

IN VIOLATION OF INTERNATIONAL LAW

50.

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

Respondents have breached, and continue to

breach their obligations under customary inter-

national law, accepted by and binding on the

United States, by seizing and continuing to hold

Mr. Omar, a United States citizen, without justi-

fication, charge, or judicial proceeding. Interna-

tional law, including the International Covenant

on Civil and Political Rights and the customary

52.

53.

54.

55.

App. 19

international law of armed conflict, prohibits pro-

longed arbitrary detention.

SIXTH CLAIM FOR RELIEF

DENIAL OF ACCESS TO COUNSEL

UNDER THE FIFTH AMENDMENT

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

Respondents have denied Mr. Omar any access to

counsel, despite his repeated requests. This vio-

lates the Fifth Amendment to the Constitution of

the United States, which prohibits the govern-

ment from denying individuals in its custody ac-

cess to counsel when they request it.

SEVENTH CLAIM FOR RELIEF

DENIAL OF ACCESS TO COUNSEL

UNDER THE SIXTH AMENDMENT

Petitioners reallege and incorporate by reference

each and every allegation contained in the pre-

ceding paragraphs as if set forth fully herein.

Respondents have denied Mr. Omar any access to

counsel, despite his repeated requests. Their

conduct violates the Sixth Amendment to the

Constitution, which grants Mr. Omar the right to

be informed of the nature and cause of the accu-

sation against him and to be provided the assis-

tance of counsel in his defense.

App. 20

FOR RELIEF

WHEREFORE, Petitioners pray for relief as

follows:

(a) Grant Petitioners Ahmed Omar and

Sandra Omar “Next Friend” status for

Shawgqi Omar, the real party in interest

in this Petition;

(b) Order Respondents to ensure that Real

Party Shawqi Omar receives a copy of

this Petition, and any Order this Court

may issue;

meet and confer with Mr. Omar, in pri-

vate and unmonitored attorney-client

conversations, both by phone and in per-

son;

(d) Order Respondents to cease all interro-

gations of Mr. Omar, whether direct or

indirect;

(e) Enjoin Respondents from transferring

Mr. Omar to the authority of any other

government, sovereign, country, or agency

until this Court has an opportunity to

consider and decide the merits of this Pe-

tition;

(f) Issue a Writ of Habeas Corpus requiring

Respondents to release Shawqi Omar

from detention, and/or requiring Re-

spondents to bring Shawqi Ahmad Omar

before a court of competent jurisdiction

App. 21

in the United States to show just cause

for his continued detention;

(g) Convene an evidentiary hearing and or-

der Respondents to produce Shawgqi for

the hearing, either by video or in person;

and

(h) Order such other relief as the Court may

deem necessary and appropriate to pro-

tect Mr. Omar’s rights, and his rights.

Dated: December 12, 2005

Respectfully submitted,

/s/ Susan L. Burke

Susan L. Burke (D.C. Bar # 414939)

Heather L. Allred

BURKE PYLE LLC

3527 Lancaster Avenue

Philadelphia, PA 19104

Telephone: (215) 387-4705

Facsimile: (215) 387-4713

Joseph Margulies

MACARTHUR JUSTICE CENTER,

UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 East 60th Street

Chicago, IL 60637

Telephone: (773) 702-9560

Facsimile: (773) 702-0771

App. 22

Aziz Z. Huq

Jonathan Hafetz

BRENNAN CENTER FOR

JUSTICE, NEW YORK

UNIVERSITY LAW SCHOOL

161 Avenue of the Americas

12th Floor

New York, NY 10013

Telephone: (212) 998-6730

Facsimile: (212) 995-4550

Counsel for Petitioners

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SANDRA K. OMAR, ef. al, ) Crvi. ACTION

Petitioners, ) NO. 05-2374 (RMU)

FRANCIS J. HARVEY, et. al, )

Respondents )

DECLARATION OF CURT GOERING

I declare under penalty of perjury that the following

is true and correct:

1. My name is Curt Goering. I am the Deputy

Executive Director of Amnesty International,

USA. Amnesty International is regarded as the

leading human rights watchdog organization.

Amnesty International received the Nobel Peace

Prize in 1977. Amnesty’s work is considered by

experts around the globe to be authoritative and

reliable.

2. Ihave served as Deputy Director for the past 20

years. In that position, I am personally responsi-

ble for overseeing and supervising teams of re-

searchers who observe and monitor adherence to

the rule of law on human rights norms. In addi-

tion, I have been a researcher in the Middle East

Department at Amnesty International’s head-

quarters in London and have traveled to lraq to

investigate allegations of torture and abuse and

interview survivors of torture.

App. 24

At present, Iraqi government forces do not ad-

here to the rule of law. Instead, they regularly

and systematically engage in acts of torture.

According to Amnesty International’s research,

the acts that have been perpetrated by Iraqi gov-

ernment forces include use of electric shocks on

different parts of the body, strangulation, break-

ing of limbs, sexual abuse, using cigarettes to

burn body parts, use of electric drills on arms and

legs, and suffocation.

The Iraqi government forces have not established

a functioning judicial system. The United Na-

tions mission in Iraq recently called for the re-

lease of hundreds of individuals in prison, who

were being kept imprisoned despite judicial order

for their release.

There is evidence that the Iraqi criminal courts

proceedings for those charged with “terrorist ac-

tivities” include the introduction of evidence

(such as confessions) that has been procured by

torture and abuse.

At present, the Iraqi criminal courts proceedings

fall far short of international standards for fair

trials.

We understand that the United States govern-

ment is contemplating turning United States

citizen Shawki Omar over to the Iraqi criminal

authorities. Based on Amnesty International’s

extensive research and investigations, we con-

clude that Shawki Omar would be at grave and

serious risk of being tortured if he were turned

over to the Iraqi criminal authorities.

App. 25 |

9. Based on Amnesty International’s extensive

research and investigation, we conclude that i

Shawki Omar is not likely to receive a trial in

conformity with international standards for fair

trials if he were to be tried by the Iraqi criminal

authorities.

Date: 5 February 2 /s/ Curt Goering :

Curt Goering ;

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SANDRA K. OMAR, e¢. al, ) Crv—L ACTION

Vv.

Petitioners, NO. 05-2374 (RMU)

)

FRANCIS J. HARVEY, et. al, )

Respondents. )

DECLARATION OF HANIA MUFTI

I declare under penalty of perjury of the laws of

the United States that the following is true and

correct:

My name is Hania Mufti. I am employed by

Human Rights Watch as a researcher. I am an

expert in human rights in Iraq because I have

been following and observing Iraqi government

conduct for many years.

I have first-hand knowledge of the present state

of affairs in Iraq. I travel to Iraq on a regular ba-

sis to observe whether the Iraqi governmental

authorities adhere to the rule of law. The infor-

mation I gather is provided to my employer, Hu-

man Rights Watch, which publicizes the state of

affairs in Human Rights Watch statements and

publications. The information contained in the

Iraq chapter of the Human Rights Watch 2006

World Report remains valid to date.

In the course of my research I have learned that

certain Iraqi governmental authorities and their

App. 27

agents torture and otherwise mistreat persons in

their custody and control.

Date:

Hania Mufti

Counsel for petitioners have been in contact with Ms.

Mufti via email. Ms. Mufti is in Jordan and therefore

unable to physically deliver the signed original to

counsel for petitioners in time for the filing deadline.

Counsel for petitioners will file the original available

as soon as it is received from Ms. Mufti.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.