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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

No. 07-394

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

Petitioners,
V.

SANDRA K. OMAR, ET AL.,
Respondents.

e

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

iv

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

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Vv

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

vi

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

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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.

4

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

5

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

6

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.

7

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.

.

8

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.

9

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.

10

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

3
ia
C.
7 ss ee ee ee

11

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

12

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

:

Sg

13

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.

14

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

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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.

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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.

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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).

x
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. *

18

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).

19

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.

20

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

21

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

22

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.

23

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.”).

24

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.).

25

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).

26

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.

27

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.

28

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

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29

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,

30

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.

. 4 ! *y

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.

ae
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;

(c) Order Respondents to allow counsel to
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)
mi
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.

~
i

7

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:

1.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0018%3A03. Public record. Not legal advice.