Petition for Writ of Certiorari — Munaf v. Geren
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“(A C, Supreme Court, U.S.
—_ 061666 JUN 13 2007
Jn Whe OFFICE OF THE CLERK
Supreme Court of the United States
®
MOHAMMAD MUNAF, ET AL..,
Petitioners,
Vv.
PETE GEREN, ET AL.,
Respondents.
S
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
r
PETITION FOR WRIT OF CERTIORARI
+
JONATHAN HAFETZ JOSEPH MARGULIES
Aziz Z. HUQ Counsel of Record
BRENNAN CENTER FOR MACARTHUR JUSTICE CENTER
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
J ERIC M. FREEDMAN
Telephone: (212) 998-6730 250 West 94th Street
SUSAN L. BURKE New York, NY 10025
KATHERINE HAWKINS Telephone: (212) 665-2713
BURKE O’NEIL, LLC
4112 Station Street VINCENT MOCCIO
Philadelphia,PA 19127 MY Macip
waren: ROBINS, KAPLAN, MILLER
Telephone: (215) 487-6590 & CIRESI
2800 LaSalle Plaza
Minneapolis, MN 55402
Telephone: (612) 349-8500
Counsel for Petitioners
-———
ae
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. When an American citizen is detained under the
exclusive control of American military authorities abroad,
is the jurisdiction of a federal court to entertain his peti-
tion for a writ of habeas corpus defeated by the fact that
those American military authorities purport to act as a
part of a multi-national force and that they propose — with
no valid legal authority — to deliver the citizen to a foreign
nation for execution of a death sentence imposed by a
court of that nation?
2. Does the decision of the Court of Appeals, holding that
Hirota v. MacArthur deprives the federal courts of juris-
' diction under these circumstances, extend the 1948 per
curiam opinion in Hirota into conflict with this Court’s
post-1948 jurisprudence culminating in Rasul v. Bush and
Hamdi v. Rumsfeld, and should that conflict be resolved
either by restricting Hirota to its proper sphere or by
overruling it?
3. Did the Court of Appeals err in holding that the
jurisdiction of the federal courts over a habeas corpus
petition filed by an American citizen detained under the
exclusive control of American military authorities abroad
turns on whether those authorities propose to deliver him
to a foreign nation for prosecution in its courts (in which
case the Court of Appeals has held that habeas jurisdiction
exists) or for execution of sentence after conviction by the
foreign court (in which case the Court of Appeals here
holds that jurisdiction ceases to exist)? If this distinction is
valid, can the military authorities defeat federal habeas
corpus jurisdiction ex post by doing what they did in this
case — arranging the conviction and sentencing of their
detainee by a foreign court after his habeas petition has
been filed?
ii
LIST OF PARTIES TO THE PROCEEDINGS BELOW
Mohammad Munaf, who is imprisoned at Camp
Cropper, in Iraq, appeared below as the petitioner, with
his sister, Maisoon Mohammed, acting as his next friend.
The following people appeared below as respondents: Pete
Geren, the Secretary of the Army; Major General John D.
Gardner, Deputy Commanding General of Detainee
Operations; and Lieutenant Colonel Quentin K. Crank,
petitioner’s immediate custodian.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED................cccsssscecceeeseeerers i
LIST OF PARTIES TO THE PROCEEDINGS BELOW... ii
I iaithcbiscndcccscincravinctncsscisossocestoss iii
TIER GI GRR BEIMEE EEE ocsccescscsccscccccscessccconsccocecce Vv
PETITION FOR A WRIT OF CERTIORARI.............. 1
CITATION TO OPINIONS BELOW.......................0008 1
IIT Giiitiicntcasitsanidbdsititpbinhihsdutasiidéesiseneiaiviens 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
ST a ininsiinsicninicidnnbiniipuctincsminieibsnennicidnensetionte 1
EEN ee ee ee 2
a so acerierinpenttonmenenidanéonbasse 3
By I III 00 isin cnctssonminnoontnssonsecseossesoee 4
REASON FOR GRANTING THE WRIT...................+ 9
THE COURT SHOULD GRANT THE WRIT
BECAUSE THE LOWER COURT IMPROPERLY
EXTENDED HIROTA v. MACARTHUR TOA USS.
CITIZEN IMPRISONED BY U.S. SOLDIERS AT A
CF, FE We MEIDY skp bncccscsccistveccésanssnctesonevees 9
Bi. Fe itittitinittinntrintosccintindiinciniineessmninpeeses 9
B. Citizenship Has Been “A Head Of
Jurisdiction” For Nearly Sixty Years.............. 12
C. Treating Mr. Munaf’s Case As An Exception To
The Rule Of Habeas Jurisdiction For Citizens Has
Created Dangerous Uncertainty In The Law ........ 16
iv
TABLE OF CONTENTS -— Continued
Page
a. By Making Habeas Jurisdiction Hinge On
The Fact Of A Foreign Conviction, The
Lower Court Ignored Settled Constitutional
Principles And Introduced Needless
Ambiguity Into The Law Of Prisoner
Be aivcticccncssccsesnepercticsissectisiobssidiatin 17
b. Neither An Executive Agreement Nor A
U.N. Resolution Can Suspend The Great
WEI ci coaciinpenescoyeemnneedueitiniedaghiingsommbiaicuaiin 24
IIE i sscksccnsiscsaiticissnssiteenitiniicelandiaelin 27
I sccnisindsilcdapiaplenodananaaad App. 1
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Abu Ali v. Ashcroft, 350 F. Supp. 2d 28 (D.D.C.
ELS ao A a 22
Barr v. United States Department of Justice, 819
a etic lactic teaseantetiont 22
Braden v. 30th Judicial Circuit Court of Ky., 410
I cescetesarrtaees 13, 15
Burns v. Wilson, 346 U.S. 137 (1953) ...........cccccccccceeeeeeeees 13
Ex parte Bollman, 8 U.S. 75 (1807) .........:.cccccceseeeceeeeeeeees 25
Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md.
ENE a ce ee 26
Factor v. Laubenheimer, 290 U.S. 276 (1933) ............. 17, 23
Geofroy v. Riggs, 133 U.S. 258 (1890)..............ccccccceeseeeeees 25
Grupo Dataflux v. Atlas Global Group, 541 U.S. 567
EEE Se a ee 19
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ...............06. passim
Hirota v. MacArthur, 338 U.S. 197 (1948) (per
I cthiinttteinornientitinesnncscdguieesenneninees hocusssnasendenssoones passim
Holmes v. Jennison, 39 U.S. 540 (1840) ............ccccceceeceeeee 18
Holmes v. Laird, 459 F.2d 1211 (D.C. Cir.), cert.
denied, 409 U.S. 869 (1972) ..........ccccsscecscesceeeerseeeeeeenees 18
Johnson v. Eisentrager, 339 U.S. 763
unitate histybeendeeuedssseansecscetesetensevedevsccepesenccees 12, 14, 15, 16, 20
Madsen v. Kinsella, 343 U.S. 341 (1952) ..............cccccceeeees 13
McElroy v. Guagliardo, 361 U.S. 281 (1960).................... 13
TABLE OF AUTHORITIES — Continued
Page
Missouri v. Holland, 252 U.S. 416 (1929)..............ccceceeeees 25
Munaf v. Harvey, 456 F. Supp. 2d 115 (D.D.C. 2006)..... 1, 7
Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007).......... passim
Omar v. Harvey, No. 06-5126, Slip Op. (D.C. Cir.
PRA a ee ccniticninneninhctiinibinitinniesbsccinanattianiinennniiints 19, 20, 22
Quinn v. Robinson, 783 F.2d 776 (9th Cir.) cert.
denied, 479 U.S. 882 (1986) ..............ssessecssssesesssreeeeserees 17
Rasul v. Bush, 542 U.S. 466 (2004) ...........ccccecceeereees passim
Reid v. Covert, 354 U.S. 1 (1957) ..........cssesrsccccscssseseceecesees 25
Republic of Austria v. Altmann, 541 U.S. 677 (2004)....... 21
Rodriguez de Quijas v. Shearson/American Express,
es ee eciisecsnititcnentiitetapimptensemnensinecinnean 8
Terlinden v. Ames, 184 U.S. 270 (1902) ............ccccceeeeeeeeees 18
Underhill v. Hernandez, 168 U.S. 250 (1897)................... 22
United States ex rel. Toth v. Quarles, 350 U.S. 11
Gil ncoceckaneesnesnsengutstpscecsineneptntntantantnninasnemesneseseesmnees 13
Valentine v. United States, 297 U.S. 5 (1936)........ 17, 18, 23
CONSTITUTIONAL PROVISIONS
re a IR a I tasccneretnsenetntntnttenensenssccetinnmens 2,5
eee 22
eee 1, 4,5
FEDERAL STATUTES
SE ae IIE crstcuninentpetienenteninteininsniennaninmntanie 1
ET 2,5, 17
vii
TABLE OF AUTHORITIES — Continued
Page
Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82 oo... 17
Military Commissions Act of 2006, P.L. 109-366,
120 Stat. 2600 (Get. 17, 2OOG)......ccceccsccesecesesscossccserseees 26
LEGISLATIVE MATERIALS
152 Cong. Rec. H7925-02, H7946, 2006 WL
2796911 (daily ed. Sept. 29, 2006) ...........c.ceccssecsesseceeees 26
152 Cong. Rec. $10243-01, S10267, 2006 WL
Rs Ci FD ivicistininsteincteceihtincedinitaniterincerece 26
Advance Questions for General George W. Casey, Jr.,
U.S. Army Nominee for Commander, Multi-
National Force-Iraq, 108th Cong. 3 (2004)..............00000+ 4
Nomination of General George W. Casey, Jr., USA,
for Reappointment to the Grade of General and
to be Commander, Multinational Force-Irag:
Hearing Before the S. Comm. On Armed Sucs.,
108th Cong. (Jume 24, 2004) .........ccccccscccssseesessrereseneeeeees 4
ADMINISTRATIVE AND EXECUTIVE MATERIALS
Executive Agreement of July 27, 1942, 57 Stat.
IE csisaeessteeicpienapesnaineandanaiiindianaitncuniiateaitiatediinimnniniinaenesaiaietin 25
INTERNATIONAL MATERIALS
U.N. HRC, Communication No. 1539/2006, Munaf
v. Romania (CCPR), Submissions of Romanian
Gov’t on Admissibility (Mar. 5, 2007), available at
http://www. brennancenter.org/dynamic/subpages/
download_file_49032.pdf and http://www.brennan
center.org/dynamic/subpages/download_file_49034.
SET nsaseesaredesmensennsenscenniatinnnnmantenenintuininiseetntieisthesesents 6, 23
TABLE OF AUTHORITIES — Continued
Page
U.N. Resolution 1386 (Dec. 20, 2001)..........c.ccccccccseereeneees 14
U.N. Resolution 1511 (Oct. 16, 2003) ............cccccccsseeeeeeees 14
U.N. Resolution 1546 (June 8, 2004)..............ccccccseeeeeeeeees 14
TREATISES
M. Cherif Bassiouni, International Extradition:
United States Law and Practice (4th ed. 2002)............ 18
R. Stern, E. Gressman, and S. Shapiro, Supreme
Court Practice (8th ed. 2002) ............cccccccesereeeeeeeeeeesesees 20
MISCELLANEOUS
Appellant’s Pet. for Reh’g and Reh’g En Banc,
Omar v. Harvey, No. 06-5126 (D.C. Cir. Mar. 26,
iil icienscticiarentuchichiecetmasidatntnataiaisinianenintitinigidatndutidenseninnees 19
Arg. Tr., Munaf v. Harvey, 456 F. Supp. 2d 115
(D.D.C. 2006) (No. 06-1455) .........ccccccecceeeeseescessereerecees 23
Arg. Tr., Omar v. Harvey, No. 06-5126 (D.C. Cir.
Bs Bee cncscrunspabenqnacimmnpuarerdimmnitiedteteieaseineemnscseneeece 4
Brief of Petitioner, Johnson v. Eisentrager, 339 U.S.
_ EER eee 12
Brief of Petitioner-Appellant, Hirota v. MacArthur,
338 U.S. 197 (1948) (No. 239) ...........cccccceceeseeeersseeereres 21
Brief for the Appellees, Munaf v. Harvey, 482 F.3d
582 (D.C. Cir. 2006) (No. 06-5324) ...........cccccceseeeeeeeeeeeees 4
Munaf v. Harvey, No. 06-A471, Order, 2006 WL
3262398 (U.S. Nov. 13, 2006) .............cccccccccccsessssesssereseors 8
Munaf v. Geren, No. 06-5324, Order (D.C. Cir. May
ie et sinlnceitedinstiteibisineitettaaltitiieinniagnncceecoesentssiibiniidaedubinepibinhiiitis 9
—S- ee ee — ee LC!
-_ - Ss, S/S oe a Se” oe
“”
ee te Se Sg ee pe Pl ONS Sey Pee See ee a
rt a ee i Nee bie ot OO Mi he te r vr
¢ vos
>
TABLE OF AUTHORITIES — Continued
Page
Munaf v. Harvey, No. 06-5324, Order (D.C. Cir. Nov.
Sn TTT sit i ciesineritetisibiathitelennalipiicieiiibiiaabieintabataiinliahatveuntenince 8
Munaf v. Harvey, No. 06-5324, Order (D.C. Cir. Oct.
Sita NITE iciinsioaticasinssiesiinhsdidataaiiniineiaiietttutiangehidigniniapetecmninnerietn 7
Pet’n for Writ of Habeas Corpus, Hirota uv.
MacArthur, 338 U.S. 197 (1948) (No. 239) ................0 21
Pet’rs’ Mot. for TRO, Munaf v. Harvey, 456
F. Supp. 2d 115 (D.D.C. 2006) (No. 06-1455).............0006 5
Pet’rs’ Supp. Mot. for TRO, Munaf v. Harvey, 456
F. Supp. 2d 115 (D.D.C. 2006) (No. 06-1455).................. 7
Resp. Pet’rs’ Supp. Mot. for TRO, Munaf v. Harvey,
456 F. Supp. 2d 115 (D.D.C. 2006) (No. 06-1455)........... 6
Resp’ts’ Mem. in Opp. to Mot. for TRO, Munaf v.
Harvey, 456 F. Supp. 2d 115 (D.D.C. 2006) (No.
eee iiitiainentnittaiebbdiipiindunsilsaneninigabilttiniiinidimadeeemnenene 5
1
PETITION FOR A WRIT OF CERTIORARI
Mohammad Munaf, with his sister Maisoon Moham-
med as next friend, prays that a writ of certiorari issue to
review the judgment of the United States Court of Appeals
for the District of Columbia Circuit.
e
CITATION TO OPINIONS BELOW
The opinion of the Court of Appeals is reported as
Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007), and is
reprinted at Appendix A to this petition. The opinion of the
United States District Court for the District of Columbia is
reported as Munaf v. Harvey, 456 F. Supp. 2d 115 (D.D.C.
2006), and is reprinted as Appendix B.
S
JURISDICTION
The Court of Appeals entered its judgment April 6,
2007, and, on May 9, granted Mr. Munaf’s motion to stay
the mandate pending the disposition of this petition. This
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
*
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
| This case involves the Due Process Clause of the Fifth
Amendment to the United States Constitution, which
provides in pertinent part:
No person shall be . . . deprived of life, liberty, or
property, without due process of law. . . .
2
This case also involves the Suspension Clause to the
Constitution, which provides:
The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebel-
lion or Invasion the public Safety may require it.
This case also involves 28 U.S.C. § 2241, which
provides in relevant part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions.
** &
(c) The writ of habeas corpus shall not extend
to a prisoner unless —
1. He is in custody under or by color of
the authority of the United States . .. ; or
* * &
3. He is in custody in violation of the
Constitution or laws or treaties of the
United States. ...
¢
STATEMENT
This petition arises from a divided decision of the
Court of Appeals for the District of Columbia Circuit
dismissing the habeas corpus petition of a U.S. citizen in
U.S. military custody overseas. The lower court relied on a
59-year-old per curiam opinion from this Court that it
described as not “especially clear or compelling, particu-
larly as applied to American citizens,” a decision whose
3
continuing vitality has been called into question by more
recent rulings here. But the Court of Appeals expressly
concluded it would leave to this Court “the prerogative of
overruling its own decisions.” Munaf v. Geren, 482 F.3d
582, 585 (D.C. Cir. 2007) (App. A at 6).
A. Statement of Facts
Mohammad Munaf was born in Baghdad, Iraq, and
emigrated to the United States in 1990 with his wife. J.A.
7.' In 2000, after ten years in the United States, Mr.
Munaf naturalized to become an American citizen. Jd. at
11. Mr. Munaf and his wife have three young children, all
US. citizens. Id. at 12.
Mr. Munaf’s wife is Romanian, and in 2001 he and his
family moved to Bucharest. Jd. In March 2005, three
Romanian journalists invited Mr. Munaf to travel with
them to Iraq as their paid translator and guide. Jd. The
four arrived in Iraq in mid-March 2005. In late March,
they were kidnapped by an Iragi group identifying itself as
the “Muadh Ibn Jabal Brigade.” On May 22, 2005, after
nearly two months in captivity, Mr. Munaf and the three
journalists were released. Jd. Upon release, they were
taken to the Romanian Embassy in Baghdad.
Immediately thereafter, U.S. military officers arrested
Mr. Munaf. Jd. They moved him to Camp Cropper, a U.S.
prison near Baghdad International Airport, where he
remains in the custody of U.S. personnel. Jd. at 8; Munaf,
' “J.A.” refers to the Joint Appendix filed in the Court of Appeals.
4
App. A. at 7 (Randolph, J., concurring in the judgment)
(“[Munaf] is held by American forces overseas.”). *
Mr. Munaf’s custodians, like all U.S. soldiers in Iraq,
answer only to a U.S. chain of command and are solely
“subject to the authority, direction and control of the
Commander, U.S. Central Command/[.]” Advance Ques-
tions for General George W. Casey, Jr., U.S. Army Nominee
for Commander, Multi-National Force-Iraq, 108th Cong. 3
(2004). As the government has properly conceded, U.S.
citizens imprisoned in Iraq are entirely “in the authority
and control of the United States.” Arg. Tr., Omar v. Har-
vey, No. 06-5126 (D.C. Cir. Sep. 11, 2006).
B. Proceedings Below
On August 18, 2006 — after almost fifteen months in
U.S. custody — Mr. Munaf petitioned for a writ of habeas
* In the lower courts, the government described a non-judicial
proceeding that it claims took place at Camp Cropper, and that
supposedly led to Mr. Munaf’s classification as a “security internee.”
Brief for the Appellees at 5-6, Munaf v. Harvey, 482 F.3d 582 (D.C. Cir.
2006) (No. 06-5324). It is undisputed that Mr. Munaf did not have the
benefit of counsel at this proceeding, and the government pointedly
does not suggest it satisfied the requirements of the Due Process
Clause. When the litigation in this case moves to the merits, the district
court may take the measure of this proceeding against the require-
ments imposed by the Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
(plurality opinion) (military must demonstrate lawfulness of citizen’s
detention by judicial proceeding that satisfies Due Process Clause).
* General Casey's Senate testimony was to the same effect. See
Nomination of General George W. Casey, Jr., USA, for Reappointment to
the Grade of General and to be Commander, Multi-National Force-Iraq:
Hearing Before the S. Comm. On Armed Sucs., 108th Cong. (June 24,
2004) (U.S. soldiers in MNF-I do not answer to any component of the
United Nations or to any entity other than the United States).
5
corpus in the United States District Court for the District
of Columbia. Through his sister as next friend, he alleged
that he had committed no crime or violent act against the
U.S. or its allies; that he had not supported forces hostile
to American interests; that he had not been a member of
or associated with al-Qaeda or any insurgent or militia
group; and that his detention by the Executive without
lawful process violated, inter alia, the Suspension Clause
and the Due Process Clause of the Fifth Amendment to the
U.S. Constitution. J.A. 7, 13, 85-86. Mr. Munaf invoked the
court’s jurisdiction pursuant to 28 U.S.C. §§ 2241(a), (c\(1),
and (c)(3), as well as the Suspension and Due Process
Clauses. Jd. at 9.
Three weeks after Mr. Munaf began this litigation,
counsel for the government advised Mr. Munaf’s counsel
that Mr. Munaf would be tried for an unspecified civilian
crime by an Iraqi court and would be transferred to Iraqi
custody if convicted. Because Mr. Munaf, a Sunni Muslim,
faces a real and substantial risk of torture if he were
delivered to the Iraqi Government, his counsel moved for a
temporary restraining order (“TRO”) to freeze the status
quo and prevent any transfer pending the adjudication of
his habeas petition. Pet’rs’ Mot. for TRO, Munaf v. Harvey,
456 F. Supp. 2d 115 (D.D.C. 2006) (No. 06-1455). The
government opposed the motion, contending the District
Court lacked jurisdiction over Mr. Munaf’s habeas peti-
tion. Id., Resp’ts’ Mem. in Opp. to Mot. for TRO, Munaf v.
Harvey, 456 F. Supp. 2d 115 (D.D.C. 2006) (No. 06-1455).
On October 12, 2006, despite the application for a
TRO pending in the District Court, U.S. military officers
presented Mr. Munaf before the Central Criminal Court of
Iraq (“CCCI”) to face criminal charges related to his
alleged role in the kidnapping of his three Romanian
6
companions. /d., Resp. to Pet’rs’ Supp. Mot. for TRO at 1,
Munaf v. Harvey, 456 F. Supp. 2d 115 (D.D.C. 2006) (No.
06-1455).
Iraqi law requires that an aggrieved party issue a
formal complaint against the accused before a prosecution
can go forward. J.A. 53. Because Mr. Munaf was charged
with kidnapping Romanian citizens, the CCCI could not
begin a prosecution without a formal complaint from the
Romanian government. Jd. At the October 12 proceeding,
Lieutenant Robert M. Pirone of the U.S. Coast Guard
appeared in the CCCI, purportedly on behalf of the Roma-
nian Government, to make a formal complaint against Mr.
Munaf. Lieutenant Pirone stated that the Romanian Em-
bassy had authorized him to appear on its behalf. Jd. at 52.
He claimed this authorization was documented in a letter
submitted in advance to the Iraqi court. Jd. No such letter
was produced, however. Nor is it part of the public record in
either the U.S. or Iraqi courts. Id. at 48. Neither Mr. Munaf
nor his counsel has seen it. The Government of Romania,
meanwhile, has officially and emphatically denied that it
authorized Lt. Pirone to speak on its behalf. Jd. at 85; see
also U.N. HRC, Communication No. 1539/2006, Munaf v.
_ Romania (CCPR), Submissions of Romanian Gov't on Admis-
sibility, {21 (Mar. 5, 2007) (“Romanian representatives from
the Embassy in Iraq had no knowledge either of the trial, nor
of the alleged authorization allegedly given by the Roma-
nian authorities to U.S. officer Robert Pirone.”).*
* Mr. Munaf has filed a complaint against the Government of
Romania in the Inter-American Commission on Human Rights,
alleging, inter alia, that Romania did not take actions within its power
to protect Mr. Munaf from a death sentence. In its response, Romania
has insisted Lt. Pirone had no authority to act for the Romanian
(Continued on following page)
7
After Lt. Pirone set forth what he claimed was Roma-
nia’s position, he met ex parte with the presiding Iraqi
judge for approximately fifteen minutes. Immediately
thereafter, that judge convicted and sentenced Mr. Munaf
to die. J.A. at 49. Mr. Munaf’s appeal of his criminal
conviction to the Iraqi Court of Cassation is still pending.
Mr. Munaf promptly notified the District Court that
he had been convicted and sentenced to death. Pet’rs’
Supp. Mot. for TRO, Munaf v. Harvey, 456 F. Supp. 2d 115
(D.D.C. 2006) (No. 06-1455). Nonetheless, on October 19,
2006, the District Court dismissed the case for want of
subject matter jurisdiction and denied the TRO application
as moot. Munaf v. Harvey, 456 F. Supp. 2d 115 (D.D.C.
2006) (App. B).
Mr. Munaf filed an immediate notice of appeal to the
D.C. Circuit and asked the Court of Appeals to enjoin the
government from transferring him to Iraqi custody pend-
ing the outcome of this litigation. On October 27, 2006, a
divided motions panel denied the request over a written
dissent, but granted an administrative injunction until
November 6, conditioned upon Mr. Munaf seeking emer-
gency relief in this Court by that date. See Munaf v.
Harvey, No. 06-5324, Order (D.C. Cir. Oct. 27, 2006); id.
(Tatel, J., dissenting). On November 6, petitioner filed
simultaneous applications for injunctive relief here and
with the en banc court of appeals.
Government in the Iraqi proceedings. The documents are available at
http://www. brennancenter.org/dynamic/subpages/download_file_49032. pdf
and http:/Avww. brennancenter.org/dynamic/subpages/download_file_49034.
pdf.
8
On November 10, 2006, the motions panel issued a
sua sponte order extending its administrative injunction
pending action by the en banc court. This removed any
imminent risk to Mr. Munaf. Having been so informed,
this Court on the next business day denied the motion
which was still pending before it. See Munaf v. Harvey, No.
06-5324, Order (D.C. Cir. Nov. 10, 2006); Munaf v. Harvey,
No. 06-A471, Order, 2006 WL 3262398 (U.S. Nov. 13,
2006). On December 15, the en banc court granted an
injunction barring Mr. Munaf’s transfer to Iraqi custody
pending resolution of his appeal.
On April 6, 2007, a divided panel affirmed the dis-
missal of Mr. Munaf’s habeas petition, concluding, reluc-
tantly, that its hands were tied by this Court’s terse per
curiam opinion in Hirota v. MacArthur, 338 U.S. 197
(1948) (per curiam). Munaf, App. A at 5-6. Speaking for the
panel majority, Judge Sentelle voiced dissatisfaction with
“the logic of Hirota,” “particularly as applied to U.S.
citizens,” and “acknowledged” that this Court’s recent
decisions in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and
Rasul v. Bush, 542 U.S. 466 (2004), cast doubt on “Hirota’s
continuing vitality.” Munaf, App. A at 5-6. Nonetheless, the
majority concluded that clarity on this issue must await
action by this Court, which alone enjoys “the prerogative
of overruling its own decisions.” Jd. at 6 (quoting Rodri-
guez de Quijas v. Shearson/American Express, 490 U.S.
477, 484 (1989)).
Concurring in the judgment, Judge Randolph rejected
the government’s jurisdictional argument out of hand. He
agreed with Mr. Munaf that citizenship and detention by
U.S. forces were “critical” distinctions between this case
and Hirota. Munaf, App. A at 7 (Randolph, J. concurring in
the judgment); see also id. at 8 (extending Hirota to bar
9
habeas petitions filed by or on behalf of U.S. citizens
“would contradict ... the majority and dissenting opinions
in Rasul”). Judge Randolph, however, would have denied
relief on the merits based on grounds neither party had
briefed in the courts below. Jd. at 7-9.
On April 26, 2007, Mr. Munaf moved the Court of
Appeals to stay issuance of its mandate pending the filing
and ultimate disposition of this petition. The government
opposed the motion on the basis that the petition was
unlikely to be granted. On May 9, the court below granted
Mr. Munaf’s motion. The effect of that order is to preserve
the Court of Appeals’ interim injunction of December 15,
2006, preventing Mr. Munaf’s transfer to Iraqi custody.
Munaf v. Geren, No. 06-5324, Order (D.C. Cir. May 9,
2007).
¢
REASON FOR GRANTING THE WRIT
THE COURT SHOULD GRANT THE WRIT BECAUSE
THE LOWER COURT IMPROPERLY EXTENDED
HIROTA v. MACARTHUR TO A U.S. CITIZEN IM-
PRISONED BY U.S. SOLDIERS AT A U.S. MILITARY
PRISON.
A. Introduction
The significance of this case can hardly be gainsaid.
The Executive Branch argues, and the lower court held,
that although Congress has not suspended the Great Writ
of Habeas Corpus for U.S. citizens, the United States
military may nonetheless detain an American citizen in an
overseas American prison indefinitely, or dispatch him to
his death at the hands of another sovereign, with no
10
obligation to demonstrate the lawfulness of either his
imprisonment or his threatened transfer.
So framed, this case presents questions of surpassing
importance: Is the Executive constrained by the Constitu-
tion and laws of the United States in its treatment of U.S.
citizens detained by U.S. officers at a U.S. prison over-
seas? And if so, can those citizens enforce those constraints
in a federal court by way of habeas corpus? The ruling
below, which cast into doubt the long-settled answers to
these questions, demands prompt review.
The Court of Appeals held that the Executive need not
account for Mr. Munaf’s imprisonment or threatened
transfer because he has been convicted by an Iraqi court
and is being detained “by United States military personnel
serving as part of the Multi-National Force-Iraq.” Munaf,
App. A at 2. The lower court did not elaborate on the
relative significance of these two facts except to conclude
_ that they brought his case within Hirota v. MacArthur,
338 U.S. 197 (1948) (per curiam). Id. In Hirota, the Court
declined to entertain a collateral challenge brought by the
former Japanese prime minister to his conviction by an
international war crimes tribunal. Hirota was a nine
sentence per curiam by a divided and incomplete Court.’ It
was issued three days after oral argument, cited no au-
thority, and has never been relied on by this Court for any
proposition.
* Justice Murphy dissented without writing in Hirota; Justice
Rutledge reserved his decision but died before announcing his vote; and
Justice Jackson did not participate. Hirota v. MacArthur, 338 U.S. 197,
198 (1948). Justice Douglas concurred only in the result, believing the
district court would have had jurisdiction over the case had it begun in
a lower court. Jd. at 203 (Douglas, J., concurring in the result).
11
The Circuit Court’s decision has dangerously destabi-
lized decades of settled precedent. Most importantly, it
threatens to transform the legal landscape for US. citi-
zens in U.S. custody. Almost sixty years ago, the Solicitor
General asked the Court to deny habeas protections to
U.S. citizens detained overseas. Unanimously, the Court
refused. In the years that followed, the Court has consis-
tently reaffirmed habeas as the preeminent protection of a
citizen’s physical liberty. The Circuit Court’s decision casts
this venerable doctrine in doubt.
At the same time, the lower court’s proffered justifica-
tion for its new rule introduces needless uncertainty into
other settled areas of the law. According to the lower court,
the bare fact of Mr. Munaf’s foreign conviction, along with
America’s participation in the MNF-I, combine by some
uncertain alchemy to strip a federal court of its power to
examine the lawfulness of a citizen’s detention and threat-
ened transfer. But this simply makes no sense. As for the
conviction, this Court has long recognized that a prisoner
may use habeas to challenge the lawfulness of his threat-
ened transfer to another sovereign, even in the shadow of
a foreign conviction. And, as for American participation in
the MNF-I, it is axiomatic that an executive agreement
cannot authorize what the Constitution forbids. Executive
membership in an international military force, therefore,
cannot suspend the Great Writ for U.S. citizens.
The lower court went astray by extending Hirota to
bar Mr. Munaf’s habeas petition. Whatever argument may
be made to deny the privilege of litigation to an enemy
alien who attempts to mount a collateral challenge to his
conviction by a foreign tribunal, it simply has no relevance
to a direct challenge by a U.S. citizen to his detention and
threatened transfer at the hands of his own countrymen.
12
The Court should grant certiorari and reverse the
judgment below to prevent a dangerous erosion of the
judiciary’s power to hear habeas petitions from U.S.
citizens detained abroad, and to prevent unnecessary
ambiguities from distorting the settled law governing
prisoner transfers and executive agreements.
B. Citizenship Has Been “A Head Of Jurisdiction”
For Nearly Sixty Years.
In 1950, the Solicitor General asked the Court to hold
that prisoners incarcerated overseas — whether citizen or
alien — had no right to challenge their detention in habeas.
The Court pointedly refused the invitation, drawing a
distinction that has endured for nearly six decades. Ameri-
can citizens, the Court explained, enjoy a “status” distinct
from “all categories of aliens”:
Citizenship as a head of jurisdiction and a
ground of protection was old when Paul invoked
it in his appeal to Caesar. The years have not de-
stroyed nor diminished the importance of citizen-
ship nor have they sapped the vitality of a
citizen’s claims upon his government for protec-
tion.
Johnson v. Eisentrager, 339 U.S. 763, 769-70 (1950); see
also Brief of Petitioner at 14-15, Johnson v. Eisentrager,
339 U.S. 763 (1950) (No. 306) (arguing that citizens as well
as aliens held overseas should be denied access to courts).
Decided two years after Hirota, Eisentrager conclusively
put to rest any argument that U.S. citizens enjoy no
greater protection than enemy aliens when they find
themselves imprisoned abroad by their government.
13
The decades since Kisentrager have only solidified the
Court’s commitment to this principle. See, e.g., Madsen v.
Kinsella, 343 U.S. 341 (1952) (entertaining habeas petition
filed by U.S. citizen convicted and sentenced by a U.S.-
controlled occupation court sitting in Germany); Burns v.
Wilson, 346 U.S. 137, 139 (1953) (plurality opinion) (adju-
dicating habeas petition from U.S. soldiers imprisoned in
Japan); United States ex rel. Toth v. Quarles, 350 U.S. 11
(1955) (granting writ to former U.S. soldier who sought
habeas while imprisoned in Korea); McElroy v. Guagliardo,
361 U.S. 281, 282 (1960) (granting writ to U.S. citizen who
sought habeas while held in Morocco).
By 1973, this principle had achieved sufficient clarity
that the Court could proclaim the following general rule
with confidence: “Where American citizens confined
overseas (and thus outside the territory of any district
court) have sought relief in habeas corpus ... , the peti-
tioners’ absence from the district does not present a
_ jurisdictional obstacle to the consideration of the claim.”
Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484,
495 (1973) (internal citations omitted). For U.S. citizens
held abroad, the only relevant jurisdictional inquiry is
whether an ultimate custodian is in the territorial jurisdic-
tion of the district court. Jd.
The most recent links in this unbroken chain are
Rasul v. Bush, 542 U.S. 466 (2004), and Hamdi v. Rums-
feld, 542 U.S. 507 (2004). In Rasul, eight Justices “explic-
itly agreed that American citizens held by American
officials overseas could invoke habeas jurisdiction.” Munaf,
App. A. 7 (Randolph, J., concurring in the judgment).
Writing for five Justices, Justice Stevens pointed out that
a U.S. citizen could invoke the habeas statute to challenge
his imprisonment at Guantanamo Bay, Cuba. Rasul, 542
14
U.S. at 481. Dissenting on the ground that the writ did not
extend to foreign nationals at Guantanamo, Justice Scalia
observed for himself and two other Justices “that United
States citizens throughout the world may be entitled to
habeas corpus rights, [which] is precisely the position that
this Court adopted in Eisentrager....” Id. at 502.
Rasul concerned foreign nationals. Hamdi, however,
involved an American citizen seized by a multinational
force within a theater of active military operations. 542
U.S. at 510 (plurality opinion) (noting that Hamdi was
captured in Afghanistan by Afghan, not American, forces).°
Hamdi was transferred to the physical custody of the U.S.
military, and held first in Afghanistan, then at the
Guantanamo Bay Naval Base, and ultimately at military
brigs in Virginia and South Carolina. Jd. Like Mr. Munaf,
Hamdi filed a habeas petition seeking to vindicate “the
most elemental of liberty interests — the interest in being
free from physical detention by one’s own government.” Jd.
at 529. Not one Justice suggested even a possibility that
jurisdiction was wanting. Id. at 539; id. at 553 (Souter, J.,
concurring in part, dissenting in part, and concurring in
the judgment); id. at 554 (Scalia, J., dissenting); id. at 585
(Thomas, J., dissenting).
Like Hamdi, Mr. Munaf is a U.S. citizen taken into
U.S. custody in the course of an overseas multinational
* The U.N. Resolutions that authorized multinational operations in
Afghanistan mirror the Resolutions that established the multinational
force in Iraq. Compare U.N. Resolution 1386 41 (Dec. 20, 2001)
(authorizing an “International Security Assistance Force” to maintain
security in Afghanistan) with U.N. Resolution 1511 4 13 (Oct. 16, 2003)
(authorizing a “multinational force” to maintain security in Iraq); U.N.
Resolution 1546 4 10 (June 8, 2004) (authorizing the “multinational
force” to take all necessary steps to maintain and stabilize Iraq).
15
military operation. Like Hamdi, Mr. Munaf was initially
seized by an ally of the United States. J.A. 12. And like
Hamdi, Mr. Munaf is in the present and actual custody of
U.S. officers. Munaf, App. A at 2 (Munaf “is being held, in
Iraq, by United States military personnel ... ”); id. at 7
(Randolph, J., concurring in the judgment) (“[Munaf] is
held by American forces overseas.”).’ Quite literally, U.S.
military officers hold the key to his cell. They alone have
the authority to release him, should a U.S. court order it
done. Braden, 410 U.S. at 495. Habeas jurisdiction re-
quires nothing more.
This entire jurisprudence — from Lisentrager to
Hamdi — developed after Hirota. And the panel majority
freely “acknowledged” that the most recent decisions in
this line — Rasul and Hamdi —- cast “Hirota’s continued
vitality” into doubt. Munaf, App. A at 6. Indeed, the
majority candidly confessed that the logic of Hirota was in
no way “clear or compelling, particularly as applied to
American citizens.” Yet because “Hirota did not suggest
any distinction between citizens and non-citizens,” the
lower court concluded, reluctantly, that it was bound by
the decision, leaving it to this Court to resolve the incon-
sistencies in the doctrine. Jd. Judge Randolph, however,
disagreed, tersely dismissing reliance on Hirota. “To
’ The fact that Mr. Munaf is being held in Iraq while Hamdi was
held in South Carolina does not alter the result. As Kisentrager and its
progeny make plain, detention overseas does not alter the jurisdictional
calculus for American citizens. See supra at 11-14. Further, as Justice
O’Connor cautioned in Hamdi, granting access to U.S. courts for
American citizens held within the country but denying it to American
citizens held overseas would create a “perverse incentive” for the
military to “simply keep citizen-detainees abroad.” Hamdi, 542 U.S. at
524 (plurality opinion). And, in any event, the location of Mr. Munaf’s
detention was irrelevant to the lower court's jurisdictional logic.
16
extend Hirota to habeas petitions filed by American
citizens,” he warned, “would contradict Eisentrager and
the majority and dissenting opinions in Rasul.” Jd. at 8
(Randolph, J., concurring in the judgment).
The net effect of the lower court’s decision is to upend
almost six decades of settled precedent. The Circuit Court
has introduced dangerous uncertainty into the law by
holding that a U.S. citizen imprisoned by his government
may not challenge his detention in an American court —
precisely the result sought by the Solicitor General and
denied by the Court in Eisentrager. The lower court
understood perfectly well that this result dramatically
extended Hirota and created a conflict with more recent
Supreme Court authority. But the Court of Appeals left it
to this Court to restore clarity and predictability to the
law. The Court should accept the lower court’s invitation.
It should grant certiorari to reaffirm a bedrock principle of
our constitutional democracy: Unless Congress has sus-
pended the writ, a U.S. citizen may always challenge the
lawfulness of his detention at the hands of his country-
men.
C. Treating Mr. Munaf’s Case As An Exception To
The Rule Of Habeas Jurisdiction For Citizens
Has Created Dangerous Uncertainty In The Law.
The panel majority believed that Mr. Munaf’s convic-
tion by an Iraqi court, combined with the U.S. govern-
ment’s participation in the MNF-I, distinguished his case
from Eisentrager and its progeny and brought it within
Hirota. Munaf, App. A at 2. But the lower court’s struggle
to bring Mr. Munaf’s case within Hirota has produced a
rule that simply makes no sense, even as it destabilizes
previously settled doctrines.
——E——EE
pt
17
a. By Making Habeas Jurisdiction Hinge On
The Fact Of A Foreign Conviction, The Lower
Court Ignored Settled Constitutional Princi-
ples And Introduced Needless Ambiguity
Into The Law Of Prisoner Transfers.
With respect to American citizens, the habeas statute
is unambiguous and unequivocal: The writ may be granted
by “the Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective juris-
dictions,” so long as the prisoner “is in custody under or by
color of the authority of the United States,” or “is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. §§ 2241(a), (c)(1), (c)(3). In
this regard, the statute has been a bulwark of remarkable
constancy. Since 1789 when it was passed by Congress in
the First Judiciary Act, and through several legislative
refinements, Congress has always given an American
citizen the right to challenge the lawfulness of his deten-
tion by the Executive. Act of Sept. 24, 1789, ch. 20, § 14, 1
Stat. 82. And nothing in this statute has ever remotely
depended on the presence or absence of a foreign convic-
tion.
Equally, the law is unmistakably clear that “in 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.” Valentine v. United States, 297 U.S. 5, 9 (1936); see
also, e.g., Factor v. Laubenheimer, 290 U.S. 276, 287 (1933)
(“(T)he legal right to demand [a prisoner’s] extradition and
the correlative duty to surrender him to the demanding
country exist only when created by treaty”) (collecting
cases); Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir.),
cert. denied, 479 U.S. 882 (1986) (“[NJo branch of the
a
’
18
United States government has any authority to surrender
an accused to a foreign government except as provided for
by statute or treaty”); Holmes v. Laird, 459 F.2d 1211,
1219 n.59 (D.C. Cir.) (“It is certainly the law that the
power of the Executive Branch to invade one’s personal
liberty by handing him over to a foreign government for
criminal proceedings must be traced to the provisions of
an applicable treaty.”), cert. denied, 409 U.S. 869 (1972).
Because the Executive may not transfer a prisoner to
another sovereign “in the absence of a conventional or
legislative provision,” Valentine, supra, federal courts have
for centuries relied on habeas to test the lawfulness of a
prisoner’s threatened transfer. See generally M. Cherif
Bassiouni, Jnternational Extradition: United States Law
and Practice 70-72 (4th ed. 2002) (citing cases); see also,
e.g., Holmes v. Jennison, 39 U.S. 540, 561-63 (1840)
(granting writ of habeas corpus to prisoner wanted for
extradition to Canada). For as long as it has applied this
doctrine, the Court has understood that this inquiry may
take place under the shadow of a foreign conviction. See,
e.g., Terlinden v. Ames, 184 U.S. 270 (1902) (defining
extradition as “the surrender by one nation to another of
an individual accused or convicted of an offence ... ”)
(emphasis added). Indeed, it is frequently the very fact of
the foreign conviction that triggers the demand for the
prisoner’s surrender. See, e.g., Holmes, 459 F.2d at 1212,
1214 (describing Germany’s demand for surrender of U.S.
citizen convicted of attempted rape). Habeas jurisdiction in
these circumstances is abundantly well settled.
The court below nevertheless cast this settled doctrine
into disarray by making “the fact of a criminal conviction
in a non-U.S. court [] a fact of jurisdictional significance
under the habeas statute.” Munaf, App. A at 6. And the
19
same court has solidified this rule by taking a complemen-
tary (but correct) position in another case. In Omar uv.
Harvey, No. 06-5126, Slip Op. (D.C. Cir. Feb. 9, 2007),
another panel of the Court of Appeals held that a U.S.
citizen detained in Iraq by American forces could challenge
his detention in habeas because he had not been charged
or convicted by an Iraqi court. Jd. at 12-13.° As a conse-
quence, the law in the D.C. Circuit reduces to this: U.S.
citizens convicted by a foreign court may not challenge the
lawfulness of their threatened transfer in an American
courtroom, but citizens who have not yet been convicted
may.
The government and Mr. Munaf agree on one point:
this rule is simply irrational. See Appellant’s Pet. for Reh’g
and Reh’g En Banc at 11, Omar v. Harvey, No. 06-5126
(D.C. Cir. Mar. 26, 2007) (making jurisdiction turn on fact
of a foreign conviction is “contrary to ... common sense”).
Under the rule adopted by the Court of Appeals, the
District Court apparently had jurisdiction when Mr.
Munaf filed his habeas petition in August 2006, but
somehow lost it two months later when he was convicted.
Cf. Grupo Dataflux v. Atlas Global Group, 541 U.S. 567,
570-71 (2004) (affirming long-standing time-of-filing rule
for calculation of federal-court jurisdiction). The power of
the federal judiciary, in other words, turns on the timing
of a foreign tribunal’s decision. This rule is not merely
nonsensical — it also creates an intolerable incentive
for the Executive to engage in precisely the sort of ma-
nipulations of a foreign tribunal that are alleged to have
* Mr. Omar and Mr. Munaf are represented by the same counsel.
20
occurred here. Nothing in the habeas statute supports this
result.
Nor will the state of the law improve through addi-
tional percolation of the issue: U.S. prisoners have either
been convicted by a foreign court or they have not. If they
have not, the longstanding rule of Kisentrager, confirmed
in Omar, prevails and the District Court has jurisdiction;
if they have, or if they are convicted at any point in their
habeas proceeding, including on appeal, the rule in Munaf
prevails and the Court’s jurisdiction is ousted. No further
development of the doctrine in the D.C. Circuit — the sole
effective forum for citizens detained overseas — can bring
reason to this rule.”
The lower court candidly conceded that this result was
irrational and confessed its inability to understand “why,
in cases such as this,” the mere fact of Mr. Munaf’s convic-
tion should deprive him of a forum to test the lawfulness
of his detention and threatened transfer. Munaf, App. A at
6. Still, the court considered itself “constrained” by Hirota,
where the petitioner had also been convicted by a foreign
tribunal. Jd. at 2. But there is a simple solution to the
lower court’s conundrum: Hirota did not turn on the mere
fact of a foreign conviction; it turned on the fact that the
petitioner tried to challenge that conviction in this Court.
* Rules concerning citizens detained overseas, much like patent
cases, will rarely if ever develop into circuit splits because all such
cases are typically filed in one federal circuit. Cf R. Stern, E. Gress-
man, and S. Shapiro, Supreme Court Practice § 4.21 p. 263 (8th ed.
2002) (because “conflict among and with other federal courts [in patent
cases] has been virtually eliminated|[,]” decisions about certiorari “now
turn largely on the importance of the questions presented”).
21
Bare recitation of Hirota’s facts reveals how far that
case is from this, and why the Circuit Court’s expansion of
Hirota was wholly unwarranted. Koki Hirota was a former
Foreign Minister and Prime Minister of Japan. He swore
allegiance to the Imperial Emperor and held governmental
posts through the barbarous Rape of Nanking. For his role
in these atrocities, Hirota was convicted of war crimes
after a trial before a panel of eleven international judges, a
trial that lasted almost two years. Pet’n for Writ of Habeas
Corpus at 22, Hirota v. MacArthur, 338 U.S. 197 (1948)
(No. 239). After his trial, Hirota attempted to mount a
collateral challenge to the judgment and conviction of the
foreign tribunal by seeking leave to file a habeas petition
directly in this Court.
His petition contained three main arguments: that
General MacArthur exceeded his constitutional authority
in creating the international military tribunal; that the
predicate acts for conviction were “beyond the scope and
purview of the Japanese instrument of surrender”; and
that the commission deprived him of the rights essential to
a fair trial. See Pet’n for Writ of Habeas Corpus at 34,
Hirota v. MacArthur, 338 U.S. 197 (1948) (No. 239); Brief
of Petitioner-Appellant at 18-22, Hirota v. MacArthur, 338
U.S. 197 (1948) (No. 239) (tribunal deprived Hirota of
right to cross-examine accusers, misapplied the rules of
evidence, and ignored proscriptions contained in Bill of
Attainder and Ex Post Facto Clauses of U.S. Constitution).
Hirota, in short, asked the Court to second-guess the
legitimacy and operation of a foreign court. But it is
axiomatic that an American court does not provide collat-
eral review of the proceedings in a foreign tribunal. Cf.
Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004)
(“the courts of one state will not question the validity of
22
public acts ... performed by other sovereigns within their
own borders, even when such courts have jurisdiction”);
Underhill v. Hernandez, 168 U.S. 250, 252 (1897) (“[T]he
courts of one country will not sit in judgment on the acts of
the government of another done within its own territory.”).
In this respect, the result in Hirota is uncontroversial.”
By contrast, the litigation that Mr. Munaf commenced
in the District Court stands on an entirely different
footing. Though Mr. Munaf has been convicted by an Iraqi
court, he does not challenge his foreign conviction or
sentence. Instead, he challenges the legality of three
specific actions taken or threatened by his American
jailers: 1) holding him 24 months without legal justifica-
tion; 2) interfering in the Iraqi proceedings in order to
create the conviction now relied upon by the government
to strip the courts of jurisdiction;” and 3) delivering him to
” Hirota’s litigation suffered from a second fatal defect as well. As
the lower court recognized, he sought leave to file directly in the
Supreme Court. Munaf, App. A at 2; see also Omar v. Harvey, No. 06-
5126, Slip Op. at 11 (D.C. Cir. Feb. 9, 2007) (Hirota was filed “as an
original petition for habeas corpus”). But jurisdiction in that instance is
either original or appellate. U.S. Const. Art. III, § 2, cl. 2. Hirota’s
litigation was neither, and the Court had no choice but to deny him
leave to file his habeas petition.
" The Court of Appeals in Omar correctly recognized this distinc-
tion. See Omar, Slip. Op. at 12 (Omar “seeks not to collaterally attack a
final international conviction, but only to test the lawfulness of his
extrajudicial detention in Iraq, where he has remained in the control of
U.S. forces for over two years without legal process.”).
* It is well-established that the district courts will investigate on
habeas corpus whether American officials have directed or participated
in the ostensibly independent actions of a foreign sovereign. See, e.g.,
Barr v. United States Department of Justice, 819 F.2d 25, 27-28 (2d Cir.
1987) (U.S. government bears legal responsibility for actions that
foreign government takes at its request); Abu Ali v. Ashcroft, 350
F. Supp. 2d 28, 64 (D.D.C. 2004) (court has jurisdiction over habeas
(Continued on following page)
23
face execution by the Iraqi Government without the
requisite judicial inquiry into whether that transfer is
lawful.” While the outcome of these claims turns on
petition filed by U.S. citizen held in Saudi Arabia to determine whether
U.S. controls his detention).
In this case it is undisputed that Lt. Pirone purported to act on
behalf of the Government of Romania at Mr. Munaf’s trial. But it is
sharply disputed whether he had any authorization from Romania to do
so. Compare J.A. 52 (declaration of Robert M. Pirone stating he was
authorized to act by the Romanian Embassy in Iraq) with J.A. 86
(Romanian “Embassy has not authorized any American official to
represent the Romanian Government during the Iraqi judicia] proce-
dures”) and U.N. HRC, Communication No. 1539/2006, Munaf v.
Romania (CCPR), Submissions of Romanian Gov't on Admissibility, 121
(Mar. 5, 2007) (“Romanian representatives from the Embassy in Iraq
had no knowledge either of the trial, nor of the alleged authorization
allegedly given by the Romanian authorities to US officer Robert
Pirone.”) (available at http://www. brennancenter.org/dynamic/subpages/
download_file_49032.pdf and http://www.brennancenter.org/dynamic/
subpages/download_file_49034.pdf, and id. at Annex 4 (“The Ministry of
Justice never empowered any American official to represent Romania
within the Iraqi legal proceedings concerning Mohammad Munaf and
has no knowledge of the existence of such a delegation”). The district
court must resolve this factual conflict on remand.
" See Valentine, supra; Laubenheimer, supra. In the District Court,
the government conceded that no treaty or statute authorized Mr.
Munaf’s transfer to Iraqi custody. Arg. Tr., Munaf v. Harvey, 456
F. Supp. 2d 115 (D.D.C. 2006) (No. 06-1455). In the Court of Appeals,
Judge Randolph ignored that concession and opined that “the Congres-
sional Authorization for Use of Military Force Against Iraq ... in
conjunction with United Nations Security Council Resolutions 1546 and
1637,” provided sufficient legal basis for the transfer. Munaf, App. A at
8-9 (Randolph, J., concurring in the result) (citations omitted). Perhaps
mindful of its concession below, the government did not advance such
an argument in the lower courts, and Mr. Munaf has never had an
opportunity to be heard on this matter. At a minimum, the lawfulness
of Mr. Munaf’s transfer raises complex questions that lie at the
intersection of extradition law, treaty law, the laws of war, and custom-
ary international law, none of which was addressed by Judge Randolph
in his hasty short-circuit of the judicial process. But Judge Randolph
(Continued on following page)
24
factual inquiries that the District Court must conduct on
the merits, each claim falls squarely within the heartland
of habeas.
In sum, the decision below introduces needless confu-
sion into the law of prisoner transfers because it fails to
recognize the difference between a collateral challenge to
the judgment of a foreign tribunal and a direct challenge
to the detention by American jailers. Oblivious to this
difference, the Court of Appeals has made a citizen’s right
to the Great Writ turn on the timing of a foreign tribunal's
judgment. The Court should grant review to restore reason
to the doctrine.
b. Neither An Executive Agreement Nor A U.N.
Resolution Can Suspend The Great Writ.
While the Court of Appeals placed principal reliance
on the fact of Mr. Munaf’s conviction, it also mentioned
several times that Mr. Munaf’s custodians were part of an
international, or multinational, force. Munaf, App. A at 3,
4, 5. The lower court did not elaborate on the significance
of this fact except to imply that it helped bring the case
within an unexpressed penumbra of Hirota. Id. at 4 (“As in
Hirota, Munaf’s case involves an international force,
detention overseas, and a conviction by a non-U:S. court.”).
But the Executive’s decision to participate in the MNF-I
has no effect on the habeas jurisdiction of a federal court.
It is inherent in our constitutional democracy that our
government cannot entreat with a foreign sovereign to do
was correct in one respect: these issues go to the merits, and not to
jurisdiction. They must be taken up on remand.
25
that which the Constitution forbids. In Reid v. Covert, 354
U.S. 1 (1957), for instance, the government argued that an
executive agreement between the United States and Great
Britain vested military courts with exclusive jurisdiction
over offenses committed in Great Britain by American
servicemen or their dependents. Pursuant to this agree-
ment, the United States tried and convicted Covert before
a military tribunal. Reid, 354 U.S. at 15-16 (plurality
opinion). Covert protested that the tribunal had not
provided for trial by jury, in violation of the Sixth Amend-
ment. Defending the conviction, the government invoked
the executive agreement and argued that it prevailed over
the Constitution. Jd. at 16.
The Court emphatically disagreed: “The United States
is entirely a creature of the Constitution. Its power and
authority have no other source. ... [Njo agreement with a
foreign nation can confer power on the Congress, or on any
other branch of Government, which is free from the
restraints of the Constitution.” Jd. at 5-6, 16. This part of
the Reid plurality, of course, has long been the law. See,
e.g., Missouri v. Holland, 252 U.S. 416, 432-34 (1929)
(treaty cannot authorize the national government “to do
that which the Constitution forbids”); Geofroy v. Riggs, 133
U.S. 258, 267 (1890) (treaty power cannot “authorize what
the Constitution forbids”).
At the same time, the Court has long held that the
constitutional authority to suspend the writ lies in
Congress, not the Executive. See, e.g., Ex parte Bollman,
8 U.S. 75, 101 (1807) (“If at any time the public safety
“ See Executive Agreement of July 27, 1942, 57 Stat. 1193 (cited in
Reid v. Covert, 354 U.S. 1, 16 n.29 (1957)).
26
should require the suspension of [habeas] ... it is for the
legislature to say 20”) (emphasis added); Hamdi. 542 US. at
562 (Scalia, J., dissenting on other grounds) (“[S)uspension
must be effected by, or authorized by, a legislative act.”); Ex
parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (Taney,
C.J.) (President has no power to suspend habeas).
The lower court turned these ancient doctrines upside
down. If membership in the MNF-I contributes somehow
to the outcome, as the lower court implies, then a unilat-
eral determination by the Executive to participate in
multilateral military operations could suspend the Great
Writ for American citizens, even in the teeth of congres-
sional opposition.” The Court should take review of this
case to correct this dangerous distortion of settled separa-
tion-of-powers law.
" Not even the government suggests that Congress has suspended the
habeas writ for citizens. On the contrary, as the Court knows, in late 2006,
courts of habeas jurisdiction over certain alien “enemy combatants.” 28
US.C. § 2241(eX(1); Military Commissions Act of 2006, P-L. 109-366, 120
Stat. 2600 (Oct. 17, 2006). Conspicuously, the MCA does not apply to US.
citizens - a point repeatedly emphasized by its drafters and supporters.
During a floor debate in the Senate, for instance, Jon Kyl (R-AZ) insisted:
“This legislation has nothing to do with citizens. The decision cited by the
Senator from Pennsylvania is the Hamdi decision, which dealt with a U.S.
citizen. And, of course, the writ of habeas corpus applies to U.S. citizens.”
152 Cong. Rec. $10243-01, S10267, 2006 WL 2771411 (Sept. 27, 2006)
(emphasis added). Similar declarations echoed throughout the House. The
“limitations on habeas corpus,” California Representative Dan Lungren
explained, “only apply to alien enemy combatants. . . .{UJnder the expressed
terms of the bill, an American citizen will have the unencumbered ability to
challenge his or her detention as they have under the Constitution.” 152
Cong. Rec. H7925-02, H7946, 2006 WL 2796911 (daily ed. Sept. 29, 2006)
(emphasis added).
27
CONCLUSION
For the foregoing reasons, a writ of certiorari should
issue to review the judgment of the D.C. Circuit Court of
y Appeals. On review, the ruling of that court that the
District Court lacked subject matter jurisdiction should be
reversed, and the case remanded for further proceedings
on the merits in the District Court.
Respectfully submitted,
JONATHAN HAFETZ JOSEPH MARGULIES
Aziz Z. Hug Counsel of Record
BRENNAN CENTER FOR MACARTHUR JUSTICE CENTER
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
Telephone: (212) 998-6730
Facsimile: (312) 503-1272
ERIC M. FREEDMAN
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
250 West 94th Street
New York, NY 10025
Telephone: (212) 665-2713
Facsimile: (212) 665-2714
VINCENT MOccIo
AMY MAGID
ROBINS, KAPLAN, MILLER
& CIRESI
2800 LaSalle Plaza
Minneapolis, MN 55402
Telephone: (612) 349-8500
Counsel for Petitioners
Dated: June 13, 2007
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App. 1
APPENDIX A
482 F.3d 582
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2007
No. 06-5324
MOHAMMAD MuNAF AND
MAISOON MOHAMMED, AS NEXT FRIEND OF MOHAMMAD
MunaF,
APPELLANTS
Decided April 6, 2007
Vv.
PETE GEREN, ACTING SECRETARY OF THE
U.S. ARMY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01455)
Joseph Margulies argued the cause for appellants.
With him on the briefs were Jonathan L. Hafetz, Aziz Z.
Hug, Eric M. Freedman, and Susan L. Burke.
Gregory G. Garre, Deputy Solicitor General, U.S.
Department of Justice, argued the cause for appellees.
With him on the brief were Peter D. Keisler, Assistant
Attorney General, Jeffrey A. Taylor, U.S. Attorney, David
B. Salmons, Assistant to the Solicitor General, Douglas N.
Letter, Litigation Counsel, and Lewis Yelin, Attorney.
App. 2
Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SEN-
TELLE.
Opinion filed by Circuit Judge RANDOLPH, concurring
in the judgment.
SENTELLE, Circuit Judge: Mohammad Munaf, an
American citizen, traveled to Iraq in 2005. In October 2006
he was convicted on kidnapping charges and sentenced to
death by the Central Criminal Court of Iraq (“CCCI”). He
is being held, in Iraq, by United States military personnel
serving as part of the Multi-National Force-Iraq (“MNF-
I”). Munaf sought a writ of habeas corpus in the United
States District Court for the District of Columbia, naming
the Secretary of the Army and others as respondents. Soon
after Munaf’s conviction by the Iraqi criminal court, the
district court held that it lacked jurisdiction and dismissed
the petition. Mohammed v. Harvey, 456 F. Supp. 2d 115
(D.D.C. 2006). Munaf appeals. Constrained by precedent,
we hold that the district court does not have the power or
authority to entertain Munaf’s petition and we therefore
affirm.
Our result is required by the Supreme Court’s decision
in Hirota v. MacArthur, 338 U.S. 197 (1948), as that
decision has been applied by this court in Flick v. Johnson,
174 F.2d 983 (D.C. Cir. 1949), and interpreted by Omar v.
Harvey, No. 06-5126 (D.C. Cir. Feb. 9, 2007). In Hirota,
Japanese citizens sought permission to file petitions for
writs of habeas corpus directly in the United States
Supreme Court. The petitioners were held in Japan, where
they had been tried by a military tribunal authorized by
General Douglas MacArthur acting as the Supreme
App. 3
Commander for the occupying Allied Powers, Hirota, 338
U.S. at 198. In a short per curiam opinion the Supreme
Court concluded that the sentencing tribunal “[was] not a
tribunal of the United States” and held that “[{uJnder the
foregoing circumstances the courts of the United States
have no power or authority to review, to affirm, set aside
or annul the judgments and sentences imposed on these
petitioners.” Jd.
Flick involved a habeas petition filed in the United
States District Court for the District of Columbia by a
German citizen held in Germany by American forces after
he was convicted by a military tribunal. 174 F.2d 983.
Relying on Hirota, we framed the jurisdictional question
as follows: “Was the court which tried and sentenced Flick
a tribunal of the United States? If it was not, no court of
this country has power or authority to review, affirm, set
aside or annul the judgment and sentence imposed on
Flick.” Jd. at 984. Finding that the military tribunal was
not a U.S. court, we held that the district court lacked
jurisdiction to review Flick’s habeas petition. Jd. at 986.
Our recent decision in Omar involved a habeas peti-
tion filed on behalf of a United States citizen being held in
Iraq by U.S. forces acting as part of the MNF-I. Omar, slip
op. at 2. As in Hirota and Flick, Omar involved detention
overseas and a multinational force. But unlike the peti-
tioners in Hirota and Flick, Omar had not been charged or
convicted by a non-U.S. court. We distinguished Hirota
and Flick on this basis and went on to hold that the
district court had jurisdiction to hear Omar’s habeas
claim. Slip op. at 12-14.
Unlike Omar, the instant case is controlled by Hirota
and Flick. The MNF-I is a multinational force, authorized
App. 4
by the United Nations Security Council, that operates in
Iraq in coordination with the Iraqi government. The CCCI
is an Iraqi criminal court of nationwide jurisdiction and is
administered by the government of Iraq; it is not a tribu-
nal of the United States. Accordingly, the district court has
no power or authority to hear this case.
Munaf contends that Hirota and Flick do not control
because, like Omar and unlike the petitioners in Hirota
and Flick, Munaf is a United States citizen.’ See, e.g.,
Johnson v. Eisentrager, 339 U.S. 763, 769 (1950) (describ-
ing citizenship as “a head of jurisdiction and a ground of
protection”). But Munaf’s citizenship does not take his
case out of the ambit of Hirota and Flick. Hirota did not
suggest any distinction between citizens and noncitizens
who were held abroad pursuant to the judgment of a non-
U.S. tribunal. Indeed, Justice Douglas wrote a separate
opinion criticizing the Hirota majority for seeming to
foreclose habeas review even for American citizens held in
such circumstances. See 338 U.S. at 204-05 (Douglas, J.,
concurring) (1949). In Omar, we held that “the critical
factor in Hirota was the petitioners’ convictions by an
international tribunal.” Slip op. at 12. We explained that,
because Hirota “articulates no general principle at all,” the
decision is controlling as a matter of precedent if the
circumstances important to the Court’s decision are
present here. Jd. at 11. As in Hirota, Munaf’s case involves
an international force, detention overseas, and a convic-
tion by a non-U.S. court. As we noted in Omar, conducting
habeas proceedings in the face of such a conviction risks
judicial second-guessing of a non-U.S. court’s judgments
' Munaf was born in Iraq and was naturalized as a United States
citizen in 2000.
App. 5
and sentences, and we explained that Hirota’s repeated
references to the petitioners’ sentences “demonstrate []
that the Court’s. primary concern was that the petitions
represented a collateral attack on the final judgment of an
international tribunal.” Jd. at 12-13. Whether a habeas
petition represents a collateral attack on a conviction by a
non-U.S. court is not dependent on the petitioner’s citizen-
ship. In light of the precedent established by Hirota,
specifically as interpreted in Flick and Omar, American
citizenship cannot displace the fact of a criminal conviction
in a non-United States court and permit the district court
to exercise jurisdiction over Munaf’s habeas petition.
Munaf also argues that he does not challenge his
conviction by the Iraqi court but rather the lawfulness of
his detention at the hands of United States military
personnel. As with Munaf’s citizenship argument, we do
not think that Hirota and Flick can be distinguished on
this ground. In Hirota and Flick, as in this case, U.S.
forces who were operating as part of a multinational force
detained the petitioners. And as in those cases, continued
confinement is dependent on a conviction by a court not of
the United States - specifically, a multinational tribunal
in Hirota and Flick and, in this case, the CCCI, which is a
foreign tribunal. The fact that the MNF-I is not an arm of
the Iraqi government but rather cooperates with Iraq and
its courts in matters of detention does not bring this case
outside the scope of Hirota. Munaf states in his brief that
“lelven if the Iraqi charges were dismissed tomorrow the
United States does not suggest [Munaf] would be re-
leased.” But the district court’s jurisdiction to inquire into
such matters is precisely the issue; if the charges were
dismissed, and United States forces were to continue to
hold Munaf, this would be a different case. Under Omar
App. 6
the district court arguably would have jurisdiction over
Munaf’s habeas claim.’ See Omar, slip op. at 14.
* * *
One final point deserves emphasis. In holding that the
district court lacks jurisdiction, we do not mean to suggest
that we find the logic of Hirota especially clear or compel-
ling, particularly as applied to American citizens. In
particular, Hirota does not explain why, in cases such as
this, the fact of a criminal conviction in a non-US. court is
a fact of jurisdictional significance under the habeas
statute. And as we acknowledged in Omar, the Supreme
Court’s recent decisions in Hamdi v. Rumsfeld, 542 U.S.
507 (2004), and Rasul v. Bush, 542 U.S. 466 (2004), are
grounds for questioning Hirota’s continued vitality. Omar,
slip op. at 9. But we are not free to disregard Hirota
simply because we may find its logic less than compelling.
“If a precedent of [the Supreme] Court has direct applica-
tion in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own
decisions.” Id. at 9 (quoting Rodriguez de Quijas v. Shear-
son/American Express, Inc., 490 U.S. 477, 484 (1989)).
For the reasons discussed above, the judgment of the
district court is
Affirmed.
* Munaf’s conviction was automatically appealed to the Iraqi Court
of Cassation. At oral argument, Munaf’s counse) stated that the status
of that appeal is unclear.
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App. 7
RANDOLPH, Circuit Judge, concurring in the judgment.
I believe the district court had jurisdiction over
Munaf’s habeas corpus petition. The critical considera-
tions are that Munaf is an American citizen and that he is
held by American forces overseas. Hirota v. MacArthur,
338 U.S. 197 (1948) (per curiam), in which the habeas
petitioners were Japanese citizens held in Japan, there-
fore does not apply. There is a longstanding jurisdictional
distinction between citizens and aliens detained outside
the sovereign territory of the United States. In Johnson v.
Eisentrager, 339 U.S. 763, 781 (1950), decided two years
after Hirota, the Court held that it lacked jurisdiction to
issue writs of habeas corpus for German prisoners held by
the United States in Germany. But the Court stated that
its holding did not apply to American citizens, to whom the
“Court long ago extended habeas corpus” when they were
held outside the United States. See id. at 769-70 (citing
Chin Yow v. United States, 208 U.S. 8 (1908)).
It is hardly surprising then that eight of the nine
Justices in Rasul v. Bush, 542 U.S. 466 (2004), explicitly
agreed that American citizens held by American officials
overseas could invoke habeas jurisdiction. For himself and
four other Justices, Justice Stevens wrote that “[a]liens
held at the [Guantanamo Bay Naval] base, no less than
American citizens, are entitled to invoke the federal courts’
authority under [28 U.S.C.] § 2241.” Id. at 481. Justice
Scalia, joined by Chief Justice Rehnquist and Justice
Thomas, stated that “[nJeither party to the present case
challenges the atextual extension of the habeas statute to
United States citizens held beyond the territorial jurisdic-
tions of the United States courts,” “[a]nd that position — the
position that United States citizens throughout the world
may be entitled to habeas corpus rights — is precisely the
App. 8
position that this Court adopted in Hisentrager ... even
while holding that aliens abroad did not have habeas
corpus rights.” Id. at 497, 502 (Scalia, J., dissenting)
(citation omitted).
It is true that Omar v. Harvey, No. 06-5126, slip op. at
12 (D.C. Cir. Feb. 9, 2007), distinguished Hirota and Flick
v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), on the ground
that in both cases the alien petitioners held overseas had
been convicted by an international tribunal. But Omar did
not speak to the jurisdictional issue confronting us here.
To extend Hirota to habeas petitions filed by American
citizens not only would contradict Eisentrager and the
majority and dissenting opinions in Rasul, but also would
constitute an unwarranted extension of an opinion that
“articulates no general legal principle at all,” Omar, slip
op. at 11.
Habeas petitions test the legality of detention. The
fact that the United States is holding Munaf because of his
conviction by a foreign tribunal thus goes to the question
whether he is entitled to the writ, not to the question
whether the court has jurisdiction to consider the petition.
See Bell v. Hood, 327 U.S. 678, 681 (1946). As to the
merits, I believe Wilson v. Girard, 354 U.S. 524 (1957), is
conclusive. After Japan indicted a United States soldier for
killing a Japanese woman in Japan, the soldier sought a
writ of habeas corpus in the United States District Court
for the District of Columbia to prevent his transfer to
Japanese authorities. Jd. at 525-26. The district court
denied the writ on the merits but issued a preliminary
injunction against the soldier’s transfer. Girard v. Wilson,
152 F. Supp. 21, 27 (D.D.C. 1957). Referring to a Security
Treaty between the United States and Japan, the Supreme
Court upheld the denial of the writ but reversed the grant
App. 9
of the injunction, 354 U.S. at 530, reasoning that a “sover-
eign nation has exclusive jurisdiction to punish offenses
against its laws committed within its borders, unless it
expressly or impliedly consents to surrender its jurisdic-
tion,” id. at 529 (citing Schooner Exchange v. M’Faddon, 11
U.S. (7 Cranch) 116, 136 (1812)). In Munaf’s case, the
Congressional Authorization for Use of Military Force
Against Iraq, Pub. L. No. 107-243, 116 Stat. 1498 (2002),
in conjunction with United Nations Security Council
Resolutions 1546, U.N. Doc. S/RES/1546 (June 8, 2004),
and 1637, U.N. Doc. S/RES/1637 (Nov. 11, 2005), com-
mands the same result. Cf Holmes v. Laird, 549 F.2d
1211, 1219 n.59 (D.C. Cir. 1972).
App. 10
APPENDIX B
456 F.Supp.2d 115
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAISOON MOHAMMED, et al., )
Petitioners, Civil Action No.
v. ) 06-1455 (RCL)
FRANCIS J. HARVEY, et al., _} Filed Oct. 19, 2006)
Respondents. )
MEMORANDUM OPINION
This matter comes before the Court on a motion(6]
and supplemental motion [12] for temporary restraining
order seeking injunctive relief pending the Court’s review
of a petition for writ of habeas corpus. [1] Upon considera-
tion of the petition, the memorandum in support of the
motion for temporary restraining order, the opposition and
the reply thereto, the applicable law, the entire record
herein, and after hearing argument, the Court dismisses
the petition sua sponte for lack of subject matter jurisdic-
tion. As such, the Court also dismisses the motion for
temporary restraining order as moot. The Court’s reason-
ing is set forth below.
App. 11
I. BACKGROUND
The petitioner, Mohammad Munaf,’ was born in Iraq
in 1952 and became a United States citizen in 2000.
Mohammed Decl. 9 2, 4, 7.” He is married to a Romanian
woman, split residences between Romania and the United
States from 1996 to 2001, and since 2001 has lived solely
in Romania. Jd. {7 5, 6, 9. In March 2005 he traveled from
Romania to Iraq with several Romanian journalists. /d.
{ 10. Shortly after their arrival, the group was kidnapped
and held captive for almost two months by a group claim-
ing to be the “Muadh Ibn Jabal Brigade.” Jd. 9J 11-13.
Their release was secured in May 2005 during a raid by
military troops under the command of Multi-National
Force-Irag (“MNF-I”). Gardner Decl. {J 3-4.
MNF-I is a military force described as “a coalition
authority consisting of approximately twenty-seven
different nations that operates in accordance with the
mandate of United Nations Security Council Resolutions
(UNSCR) 1546 and 1637 (2005).” Gardner Decl. ¥ 2; see
also Respondents’ Opposition to Petitioners’ Motion for
a Temporary Restraining Order [9-1] (“Opp.”), Ex. 2
' The petition in this case was brought on behalf of Munaf by his
sister, Maisoon Mohammed, as next friend. For ease of reference, the
Court will use the singular “petitioner” to refer to Munaf.
* Ms. Mohammed's affidavit consists partly of matters within her
personal knowledge and partly of hearsay statements. Petitioner also
submits three declarations of Sean Riordan, a law student and legal
intern for petitioner's American legal counsel, who speaks Arabic. These
declarations consist of Riordan’s accounts of his conversations, in
Arabic, with one of petitioner’s sisters, see First Riordan Decl. and
Third Riordan Decl., and with petitioner’s Iraqi lawyer, see Second
Riordan Decl., both of whom are in Iraq. Portions of these declarations
contain additional layers of hearsay. At this stage of the proceedings,
the Court will consider all of the materials before it.
App. 12
(Resolution 1546), Ex. 3 (Resolution 1637). Under this
limited mandate, which is set to expire at the end of 2006
unless renewed, MNF-I operates “on behalf of and at the
request of the Iraqi government” in Iraq. Gardner Decl.
q 2. MNF-I’s power under the U.N. Resolutions includes
the authority to detain prisoners who pose a threat to
security in Iraq. MNF-I and the government of Iraq have
agreed that MNF-I will maintain physical custody of
prisoners awaiting criminal prosecution in Iraqi courts, as
Iraq lacks much of the infrastructure necessary for main-
taining its own prisoners. Jd. {J 2-3; Opp. at 4.
Since the MNF-I raid, petitioner Munaf has been held
as a prisoner by MNF-I troops at Camp Cropper, a mili-
tary installation located at the Baghdad International
Airport. Petition 7 3. It has been alleged that petitioner
was a willing participant in a kidnapping-for-profit
scheme, in that he posed as a kidnap victim and led the
actual victims into a trap.’ Gardner Decl. {9 4-5, 11-14.
Petitioner maintains he is innocent of any criminal
wrongdoing, and that he is not and has never been a
member of al Qaeda in Iraq or any other terrorist group.
Petition { 22.
* According to respondents, petitioner’s role in the scheme was to
travel to Iraq with the journalists, “ostensibly as their guide and
translator and help facilitate the kidnapping.” Gardner Decl. 7 13. The
alleged “mastermind” of the plot would then negotiate the release of the
Romanians, which would “increase his own stature” and help him “gain
the support of the Romanian President Traian Basescu to develop new
business in Romania.” /d. {4 11-12. The kidnappers called themselves
the “Muadh Ibn Jabal Brigade” and demanded payment of a ransom
and that Romania withdraw its troops from Iraq. Mohammed Decl.
G 12.
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App. 13
Petitioner alleges that for the first five months of his
detention, he was held incommunicado. Petition J 4. Since
then, he has had limited contact with his family and with
an Iraqi attorney. Jd. Two months after petitioner was
taken into custody, he appeared before a three-person
panel of MNF-I officers who conducted “a comprehensive
review of Munaf’s status and detention.” Opp. at 7;
Gardner Decl. 7 5. The panel interviewed witnesses and
reviewed “available intelligence information.” Gardner
Decl. 9 5. Petitioner was present at the hearing and had
an opportunity to hear the basis for his detention and to
make a statement. Jd. The panel found that petitioner
should be considered a “security internee,” as defined in
U.N. documents, and should continue to be detained
pursuant to MNF-I’s U.N. mandate. Jd.
Munaf’s case was referred to the Iraqi government.
Gardner Decl. 16. The government instituted criminal
proceedings in the Central Criminal Court of Iraq
(“CCCI”), an Iraqi court that is staffed by Iraqi citizens
and applies Iraqi law. Jd. 9 7. Munaf has appeared at four
CCCI “Investigative Hearings,” each time with his Iraqi
attorney. Jd. 7 15. At two of these hearings Munaf ap-
peared as a witness against other defendants, and at the
other two he appeared as the defendant in his own prose-
cution. Jd. The Investigative Hearing Judge concluded
that there was sufficient evidence to refer Munaf’s case to
the Trial Court as a defendant. Jd. Respondents allege
that Munaf has confessed his role in the kidnapping on
camera, in writing, and in front of the Investigative
Hearing Judge. Gardner Decl. J 11. Munaf counters that
any incriminating statements he made were coerced. First
Riordan Decl. {4 8, 11. Specifically, petitioner alleges that
he has been threatened by “U.S. and Romanian officials,”
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App. 14
and that unspecified “[o)fficials” told him that if he did not
confess, he, his sister, and his wife would be sexually
assaulted. Id.
Through his sister as next friend, Munaf petitioned in
this Court for a writ of habeas corpus on August 18, 2006.
The petition named as respondents Francis J. Harvey, the
United States Secretary of the Army; Maj. Gen. William H.
Brandenburg, Deputy Commanding General of Detainee
Operations for Task Force 134, MNF-I; and one “Colonel
Steele,” first name unknown, who is the alleged Com-
manding Officer of Camp Cropper. The petition calls for
issuance of a writ compelling respondents to allow Munaf
access to attorneys of his choice, to “establish a lawful
basis for Mr. Munaf’s detention or release him from
custody,” and to enjoin his transfer to Iraq authorities. On
September 8, 2006, petitioner moved for a temporary
restraining order to prohibit respondents from transfer-
ring him to the custody of the government of Iraq, pending
resolution of his habeas petition. A hearing on the motion
was held on October 10, 2006.
On October 12, 2006, petitioner and his five codefen-
dants appeared before a three-judge Trial Panel of the
CCCI to face kidnapping charges under the Iraqi Penal
Code. Pirone Decl. ¥ 3. Petitioner was accompanied by his
Iraqi counsel and had the opportunity to “submit any
evidence or bring any witnesses.” Jd. 9 4. Indeed, peti-
tioner did make a statement, reiterating his position that
he was innocent and that his prior confession was coerced.
Second Riordan Decl. 99. Petitioner claims that two
“United States military officials” attended the hearing. /d.
4 7. He alleges that one was an American soldier who told
the court he was appearing at the request of the Romanian
embassy to seek the death penalty for the defendants. /d.
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Petitioner alleges that the other was an American general
“who told the judge in open court that the defendants
should all be convicted and sentenced to death,” and that
one “Judge Al-Rubaay” disagreed with the general.‘ Jd. at
qi 7-8. At one point, defendants and their counsel were
removed from the courtroom. Petitioner claims that the
“American military officials” then met with the judge for
about 15 minutes. Jd. { 12.
Respondents explain that Robert Pirone, a Coast
Guard Lieutenant who serves as an attorney at the CCCI
Liaison Office in Baghdad, was present at the hearing in
his capacity as a participant in MNF-I. Pirone Decl. { 1.
According to Pirone’s sworn affidavit, Pirone appeared at
the trial to make a formal complaint for the Romanian
government about the kidnapping, whose victims were all
Romanian.’ Jd. J 7. Pirone was under oath at the trial, and
his notarized authorization to represent the Romanian
Embassy had been submitted to the court weeks before the
trial. Jd. In his affidavit, Pirone attests that his role at the
trial was limited to answering questions about the case,
based on prior confessions by the defendants, and to
making the formal complaint, a requirement under Iraqi
law. Id. Petitioner and his codefendants were allowed to
make statements, and counsel for the prosecution and
* While petitioner mentions only one judge who was present at the
hearing, respondents have identified three judges who were present.
See Second Riordan Decl. { 5; Pirone Decl. 4 3. The use of a three-judge
panel is consistent with the Trial Panel procedure previously described
by respondents. Gardner Decl. { 9.
* Romania participates in MNF-I. Opp. at 3 n.1.
App. 16
defendants made arguments.* Second Riordan Decl. 9{ 9-
10; Pirone Decl. {9 6-9. The Trial Panel questioned the
defendants and called additional witnesses. Pirone Decl.
14% 6-7.
Pirone attests that no other member of MNF-I par-
ticipated in the trial in any way, and that any MNF-I
personnel who were present were there only as observers
or guards. Jd. J 8. There was no American general present,
nor a general of any other MNF-I member nation. Jd.
Pirone states that when the courtroom was closed, he left
the room and spent the entire recess talking with peti-
tioner’s attorney. Jd. J] 10. He also says that no MNF-I
personnel were with the judges while they deliberated. /d.
When the hearing was reconvened, the court found peti-
tioner and his five codefendants’ guilty of kidnapping and
sentenced them all to death.
A standard practice is followed when an MNF-I
detainee is convicted of criminal charges by the CCCI.
Gardner Decl. 9 17. First, the Trial Court issues an order
to the Deputy Commanding General for Detainee Opera-
tions of MNF-I, who is a respondent in this case." Jd. In
* Petitioner and four of his codefendants recanted their prior
confessions before the Trial Panel, claiming they had been coerced.
Second Riordan Decl. 7 9; Pirone Decl. { 6.
" Munaf’s codefendants were held in the custody of the Iraqi
government and were never in the custody of MNF-I. Pirone Decl. { 4.
* The habeas petition names as a respondent one “Major General
William H. Brandenburg, Deputy Commanding General (Detainee
Operations)//Commanding General, Task Force 134, Multi-National
Force-Iraq.” Respondents have identified the proper respondent as
Major General John D. Gardner in his capacity as the “Deputy Com-
manding General for Detainee Operations (DCG-DO) Multi-National
Force-Iraq.” Gardner Decl. { 1.
App. 17
response, the Deputy Commanding General for Detainee
Operations issues a transfer order releasing the detainee
to an Iraqi Ministry of Justice facility. Jd. It typically takes
two to three weeks to process a transfer. Jd. A defendant
under sentence of death in Iraq has a statutory right to an
automatic appeal to the Iraqi Court of Cassation. Pirone
Decl. J 13. The defendant has 30 days from the day after
sentencing to submit material to the Court of Cassation.
Id.
II. ANALYSIS
A. Standard for Reviewing Habeas Corpus
Petition for Jurisdiction
“Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.” Fed. R. Civ. P.
12(h)(3). If a court determines that it lacks subject matter
jurisdiction, it therefore is duty bound to dismiss the case
on its own motion. In considering the legal sufficiency of
the jurisdictional allegations in a petition for habeas
corpus, the Court takes the petitioners’ factual allegations
as true, drawing all reasonable inferences in the petition-
ers’ favor. See Hawk v. Olson, 326 U.S. 271, 272 (1945);
Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d
36, 39 (D.C. Cir. 2000). But in determining its own juris-
diction, the Court is not limited to the allegations in the
petition. See Hohri v. United States, 782 F.2d 227, 241
(D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64
(1987). The Court may examine materials outside the
pleadings as appropriate to determine whether it has
jurisdiction over the subject matter. See Herbert v. Nat'l
Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
App. 18
Petitioner alleges that a “U.S. citizen detained in the
custody of federal officials in violation of the Constitution,
laws, or treaties of the U.S. unquestionably has the right
to challenge that detention in federal court once personal
jurisdiction over the petitioner’s custodian is established.”
Petition 7 8. He alleges that he “is detained by U.S.
officials at a detention facility known as Camp Cropper.
The facility is under the control of the U.S. military and
within the plenary and exclusive jurisdiction or dominion
exercised in fact of the U.S.” Jd. | 9. He contends that he is
“in U.S. custody.” Id. 921. Respondents counter that
“[ajlthough United States Armed Forces participate in the
detention fof detainees pending CCCI prosecutions], they
do so not gua the United States but as part of their role in
MNF-I.” Opp. at 8.
B. Habeas Corpus Jurisdiction
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree. It
is to be presumed that a cause lies outside this limited
jurisdiction[.)” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). The principal source of
jurisdiction alleged in this case is the habeas corpus
statute applicable to the federal government, 28 U.S.C.
§ 2241 (2006). In pertinent part, it states that the:
writ of habeas corpus shall not extend to a pris-
oner unless —
(1) He is in custody under or by color of the au-
thority of the United States or is committed for
trial before some court thereof; or
App. 19
(2) He is in custody for an act done or omitted
in pursuance of an Act of Congress, or an order,
process, judgment or decree of a court or judge of
the United States; or
(3) He is in custody in violation of the Constitu-
tion or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and
domiciled therein is in custody for an act done or
omitted under any alleged right, title, authority,
privilege, protection, or exemption claimed under
the commission, order or sanction of any foreign
state, or under color thereof, the validity and ef-
fect of which depend upon the law of nations; or
(5) it is necessary to bring him into court to tes-
tify or for trial.
28 U.S.C. § 2241(c). The application for the writ must
“allege the facts concerning the applicant’s commitment or
detention, the name of the person who has custody over
him and by virtue of what claim or authority, if known.”
Id. at § 2242. If the writ is granted, it “shall be directed to
the person having custody of the person detained,” who
can therefore “be required to produce at the hearing the
body of the person detained.” Jd. at § 2243.
Under these terms, “[tJhe turnkey of the habeas
statute is the requirement of custody.” Abu Ali v. Ashcroft,
350 F.Supp. 2d 28, 45 (D.D.C. 2004). A court has jurisdic-
tion to issue the writ only if the petitioner is “in custody
under or by color of the authority of the United States” or
“in violation of the Constitution or laws or treaties of the
United States,” or other elements not relevant here. A
central prerequisite for habeas relief is that the court must
have the ability to force compliance by the petitioner’s
custodian, because “[t]he writ of habeas corpus does not
App. 20
act upon the prisoner who seeks relief, but upon the
person who holds him in what is alleged to be unlawful
custody.” Braden v. 30th Judicial Circuit Court of Ken-
tucky, 410 U.S. 484 (1973). The identity of the custodian is
crucial because the writ:
is directed to, and served upon, not the person
confined, but his jailor. It does not reach the for-
mer except through the latter. The officer or per-
son who serves it does not unbar the prison
doors, and set the prisoner free, but the court re-
lieves him by compelling the oppressor to release
his constraint. The whole force of the writ is
spent upon the respondent, and if he fails to obey
it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment.
In the Matter of Samuel W. Jackson, 15 Mich. 417, 439-40
(1867).
The Supreme Court has “very liberally construed the
‘in custody’ requirement for purposes of federal habeas.”
Maleng v. Cook, 490 U.S. 488, 492 (1989). For habeas
jurisdiction to exist, the prisoner must be “held in actual
or constructive custody by the respondents named in the
petition, or by any other person or persons subject to the
jurisdiction of the District Court.” United States ex rel.
Keefe v. Dulles, 222 F.2d 390, 392 (D.C. Cir. 1954). The
converse must also be true: if the petitioner is in custody
under some authority other than the United States, there
is no habeas jurisdiction. For instance, where a US.
citizen was held in a French jail by the authority of a
French court, a U.S. court did not have jurisdiction over
his habeas petition. Jd. at 391 (“For obvious reasons,
[petitioner] did not ask that the writ be directed to the
foreign jailer.”).
Bik ae ins Si ae
“
App. 21
A prisoner is in the constructive custody of the United
States when he is in the actual, physical custody of some
person or entity who cannot be deemed the United States,
but is being held under the authority of the United States
or on its behalf. Constructive custody has been found in
cases of actual custody between one state and another,
Braden v. 30th Judicial Circuit Court of Kentucky, 410
U.S. 484 (1973) (prisoner in actual custody of state of
Alabama found to be in constructive custody of Kentucky
for habeas purposes); between a state and a private prison,
Stokes v. United States Parole Comm’n, 374 F.3d 1234,
1238 (D.C. Cir. 2004), Skelton v. Pri-Cor, Inc., 963 F.2d
100, 102 (6th Cir. 1991); between the United States and
private individuals acting as its agent, United States v.
Jung Ah Lung, 124 U.S. 621, 626 (1888) (petitioner held
by harbormaster “in custody by direction of the customs
authority of the port, under the provision of the Chinese
restriction act,” an act of Congress), Chin Yow v. United
States, 208 U.S. 8 (1908) (petitioner held by manager of
steamship company under similar authority); and between
the United States and a foreign country that is used as the
United States’ “intermediary,” Abu Ali v. Ashcroft, 350
F.Supp. 2d 28 (D.D.C. 2004).
The reach of the writ is not limited to the territorial
jurisdiction of the United States courts where the immedi-
ate custodian is the United States. See, e.g., Burns v.
Wilson, 346 U.S. 137 (1953) (finding jurisdiction over
habeas claims by airmen detained under courts martial in
Guam); United States ex rel. Toth v. Quarles, 350 U.S. 11
(1955) (finding jurisdiction over habeas petition by ex-
airman facing court martial in Korea). The ultimate
territorial scope of the writ remains an open question.
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App. 22
That question need not be answered in this case,
because petitioner fails on a threshold requirement: he is
not being held “under or by color of the authority of the
United States” or “in violation of the Constitution or laws
or treaties of the United States,” as required under the
habeas statute. Petitioner has alleged that he is “detained
by U.S. officials” and “in U.S. custody.” Petition 7{ 9, 21.
But he is in the custody of coalition troops operating under
the aegis of MNF-I, who derive their ultimate authority
from the United Nations and the MNF-I member nations
acting jointly, not from the United States acting alone. The
United States has not asserted and does not profess to
have the independent right to order that petitioner be
moved, tried, punished, or released. Petitioner is thus
under the actual, physical custody of MNF-I, a multina-
tional entity separate and distinct from the United States
or its army. He is in the constructive custody of the Repub-
lic of Iraq, which is seized of jurisdiction in the criminal
case against him, and which controls his ultimate disposi-
tion. Petitioner thus has two custodians, one actual and
the other constructive: MNF-I and the government of Iraq.
Petitioner has not shown that either custodian is the
equivalent of the United States for the purposes of habeas
corpus jurisdiction.
1. Iraq as Custodian
Petitioner voluntarily entered the sovereign country of
Iraq and has been convicted by the courts of that country
for a violation of Iraqi law. The writ of habeas corpus will
not reach to a foreign sovereign. See, e.g., Duchow uv.
United States, 1995 WL 425037 *1, *3, 95-cv-2121 (E.D.
La. 1995) (U.S. citizen detained in Bolivia by Bolivian
government not entitled to habeas relief). See generally Ex
a i i i tet a Sel el,
or “on 4.
:
App. 23
parte Mwenya, [1960] 1 Q@.B. 241 (summarizing evolution
of British common law of habeas corpus, in which avail-
ability of the writ turns on the sovereign’s control over the
custodian). In exceptional cases where the United States
acts through another country as an intermediary to hold a
U.S. citizen, at the direction and under the ultimate
control of the United States, the writ can be issued to the
appropriate officials of the United States. Abu Ali, 350
F.Supp. 2d 28. But no evidence has been presented that
the sovereign nation of Iraq is holding petitioner at the
direction and under the ultimate control of the United
States.
2. MNF-I as Custodian
It does not change the outcome to point out that
Munaf is in the physical custody of U.S. troops in their
capacity as participants in MNF-I. Where a U’S. citizen is
detained under the authority of a multinational military
entity, he is not in custody “under or by color of the author-
ity of the United States,” even if American military per-
sonnel play a role in his detention as part of their
participation in that multinational force. Petitioner in this
case is held by MNF-I, operating under international
authority derived from the U.N. Resolutions. MNF-I has
clearly asserted its authority over him by, for instance,
conducting a hearing at which MNF-I determined that
petitioner should be held as a security internee and that
his case should be referred to CCCI.
In Hirota v. General of the Army MacArthur, 338 U.S.
197 (1948) (per curiam), Japanese citizens moved in the
Supreme Court for leave to file habeas corpus petitions
challenging their sentences under a military tribunal in
App. 24
Japan. American military personnel participated in iue
tribunal, and the prisoners were in the physical custody of
U.S. troops. General Douglas MacArthur, acting in his
capacity as Supreme Commander for the Allied Powers,
established the military tribunal “as the agent of the
Allied Powers.” Jd. at 198. The Court denied the petition-
ers’ motion because “the tribunal sentencing these peti-
tioners is not a tribunal of the United States.” Jd. The
Court traced the authority under which the tribunal acted
and determined that it emanated from the multinational
Allies and not the United States in its independent capac-
ity. Because the prisoners were held under the authority of
an entity that was “not a tribunal of the United States,”
the prisoners were not in the custody of the United States
for purposes of habeas jurisdiction.
The rule recognized in Hirota was applied in Flick v.
Johnson, 174 F.2d 983 (D.C. Cir. 1949), in which German
citizens petitioned for habeas corpus to challenge their
convictions by an Allied military tribunal in Germany
following World War II. While the tribunal had been
staffed by Americans and the petitioners were in the
physical custody of American soldiers, the crucial question
was the authority by which they were held: “If it was an
international tribunal, that ends the matter.” Jd. at 985.
Because the tribunal derived its authority from the Allies
acting jointly in the immediate aftermath of the fall of
Germany, it was not “a tribunal of the United States.”
Therefore “no court of this country has power or authority
to review, affirm, set aside or annul the judgment and
sentence imposed.” Jd. at 984.
Petitioner counters that the habeas applicants in
those cases were not U.S. citizens. But nothing in Hirota
or Flick purported to turn on whether the petitioners were
App. 25
citizens. The courts were without jurisdiction because the
petitioners were held under the authority of entities that
were “not a tribunal of the United States.” The identity of
the custodian, and the concomitant lack of habeas jurisdic-
tion, would remain the same regardless of the petitioners’
citizenship. This is because, as stated previously, the writ
acts upon the custodian, not the prisoner.
The fact that it is the identity of the custodian that
matters most in this context, and not the citizenship of the
prisoner, is demonstrated by In re Yamashita, 327 U.S. 1
(1946). There a Japanese commander petitioned for
habeas corpus to challenge his sentence by a military
tribunal in the Philippines. The Supreme Court traced the
authority under which the tribunal was established: the
authority emanated originally from the President of the
United States as commander-in-chief, who directed the
Joint Chiefs of Staff, who in turn commanded General
MacArthur, acting in his capacity as “Commander in
Chief, United States Arm [sic] Forces, Pacific,” who in turn
specifically ordered a U.S. Army general to establish the
tribunal. Jd. at 10. The tribunal derived its power entirely
from the United States Executive and operated outside the
framework of the Allied Powers. The Court found that
there was habeas jurisdiction for a limited inquiry into the
jurisdiction o. the sentencing tribunal.
Hirota and Yamashita, taken together, recognized that
General MacArthur acted in two capacities, as both an
American and Allied commander, and evaluated the
derivation of authority by which he and his subordinates
held prisoners in custody. Therefore, prisoners who were
in custody of the United States alone, under the sole
App. 26
authority of the United States, could invoke habeas
jurisdiction.’ But prisoners who were held pursuant to the
authority of the Allies, and who were in the physical
custody of American soldiers acting as members of the
Allied Powers, were in the custody of the Allies, not the
United States, and therefore could not invoke the jurisdic-
tion of the U.S. courts. Flick and Madsen v. Kinsella, 343
U.S. 341 (1952) are to the same effect for the European
theater.
Petitioner claims that citizenship must have mattered
in Hirota and Flick because there have been other cases
where courts entertained habeas applications from citi-
zens who were in the custody of the United States while it
participated in a multinational force. But in each of these
cases, the petitioner was held under the independent
authority of the United States qua United States, not by a
multinational force in which the United States partici-
pated. In all of those cases, the courts traced the authority
of the custodian to its source to determine if the custodian
was the United States or some other entity.
For instance, petitioner cites to Madsen v. Kinsella,
343 U.S. 341 (1952). In that case the Supreme Court found
that there was jurisdiction to hear the habeas petition of a
woman confined in a federal prison in West Virginia for
* Courts have found jurisdiction to entertain habeas petitions from
U.S. military personnel who were held or tried by American military
tribunals or courts martial in various locations the world over. The
jurisdiction has turned not on the location where the soldier was held,
nor on the composition of the force in which he served — multinational
or unilateral — but on the authority under which he was actually tried
or held. See, e.g., Burns v. Wilson, 346 U.S. 137 (1953) (courts had
jurisdiction over habeas claims of airmen tried by U.S. courts martial in
Guam).
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App. 27
the murder of her serviceman-husband, whom she had
killed in the American Occupied Zone of Germany shortly
after World War II. She had been tried and sentenced in
Germany by the “United States Court of the Allied High
Commission for Germany” in 1950. This court, established
unilaterally by the United States and with jurisdiction
within the American zone of control, was a different court
than the one at issue in Flick. It was a purely American
creation and did not purport to exercise the authority of
the Allies, and, moreover, petitioner was in custody in a
United States federal prison in America.
Similarly, habeas jurisdiction was found to lie in the
case of a former U.S. airman who was arrested by military
officials in America and taken to Korea, where he was
charged in a court martial with participating in a murder
conspiracy in Korea during the Korean conflict. United
States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). Though
America had participated in the Korean conflict under the
auspices of a multinational United Nations force, the
petitioner’s court martial was an entirely American
tribunal, established under the authority of an act of
Congress.” Once again, the Court established at the outset
that the tribunal derived its authority solely from the
United States government. With the United States as
custodian, habeas jurisdiction was proper, despite the fact
that the prisoner and immediate custodian were in Korea.
” Petitioner repeatedly conflates the authority by which U.S.
troops operate within a military theater and the authority under which
a prisoner is held. That the United States operates within a multina-
tional military force does not cast all subsequent events in a multina-
tional sheen. Thus courts must look to the substance of the matter and
determine the source of authority for the detention.
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App. 28
Petitioner has argued that strong dicta in Johnson v.
Eisentrager, 339 U.S. 763 (1950), counsels a different
result, After denying enemy aliens held abroad the right to
sue in U.S. courts, the Supreme Court distinguished the
rights of aliens from those of citizens, and opined that
“[clitizenship as a head of jurisdiction and a ground of
protection was old when Paul invoked it in his appeal to
Caesar. The years have not destroyed nor diminished the
importance of citizenship nor have they sapped the vitality
of a citizen’s claims upon his government for protection.”
Id. at 769. But in the very same paragraph, the Court
identified two ways in which the courts protect citizenship:
by issuing writs of habeas corpus to those in custody by
the United States, and by hearing suits to declare a person
a citizen “regardless of whether he is within the United
States or abroad.” Id. at 769-70. But the Court followed by
noting that “[wJhen any citizen is deprived of his liberty by
any foreign government, it is made the duty of the Presi-
dent to demand the reasons and, if the detention appears
wrongful to use means not amounting to acts of war to
effectuate his release.” Id. at 770. The Eisentrager Court
thus recognized that while citizenship may be a head of
jurisdiction, it does not justify jurisdiction when the
citizen is not held by the United States; the only remedies
there are diplomatic, not judicial.
Most tellingly, Eisentrager recognized the distinction
between custody by the authority of the United States and
custody by the authority of a multinational entity. As the
first matter it considered, the Court found that the peti-
tioners Were in the custody of a United States force that
derived its authority solely from the United States, and
that the “proceeding was conducted wholly under Ameri-
can auspices and involved no international participation.”
RR Be RD OE eR oa NER ea ae
App. 29
Id. at 765. Eisentrager thus recognizes the threshold
importance of determining the identity of the custodian.
Recent developments in the law of habeas corpus
serve to confirm the holding in the instant case. Rumsfeld
v. Padilla, 542 U.S. 426 (20004 [sic]), Rasul v. Bush, 542
U.S. 466 (2004), Hamdi v. Rumsfeld, 542 U.S. 507 (2004),
and Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), reiterate
that the remedy provided by the writ of habeas corpus is
expansive and not confined solely to U.S. citizens. But the
one constant in all these cases is that the petitioners were
in the custody of the United States alone, in its capacity as
the United States, and not by any multinational force.
While the prisoners may have been captured by a multina-
tional force, they were transferred to the sole custody of
the United States, and it was that detention they chal-
lenged. There is not even the slightest hint in any of these
cases that another nation or multinational entity claimed
control over the prisoners.
This is not to say that the United States military may
purposefully evade the habeas jurisdiction of the courts, or
otherwise deprive citizens of their rights, merely by
cloaking its conduct in the guise of a multinational force."
” Military personnel who participate in MNF-I remain subject to
the military justice systems of their respective countries. United
Nations Security Council Reeolution 1546 (2004), which authorized
MNF-I, incorporates by reference a letter from Colin Powell, then the
Secretary of State for the United States, in which Powell represents
that “the MNF under unified command” is prepared to participate in
the maintenance of security in Iraq. Opp., Ex. 2 at 11. Powell's letter
states that “the MNF must continue to function under a framework
that affords the force and its personnel the status that they need to
accomplish their mission, and in which the contributing states have
responsibility for exercising jurisdiction over their personnel.” Jd. at 12.
This language indicates that the participants in MNF-I retain court
(Continued on following page)
App. 30
Nothing in teday’s holding is inconsistent with Abu Ali v.
Ashcroft, 350 F.Supp. 2d 28 (D.D.C. 2004), which held that
“the United States may not avoid the habeas jurisdiction
of the federal courts by enlisting a foreign ally as an
intermediary to detain the citizen.” Jd. at 41.
In Abu Ali, an American citizen was arrested and held
in the Kingdom of Saudi Arabia by the Saudi government.
But the citizen alleged, and “to some degree substanti-
ated,” that: (1) the United States initiated his arrest as
part of an American criminal investigation; (2) the United
States participated in interrogating him in the Saudi
prison; (3) the United States controlled his detention in
the Saudi prison; (4) the United States was keeping him in
martial jurisdiction over their own personnel, rather than subjecting
them to some sort of joint system of military justice. The letter cannot
be read to suggest, as petitioner would have it, that the United States
courts have subject matter jurisdiction over the habeas claims of
prisoners who are guarded by U.S. forces operating within the frame-
work of MNF-I. Taken as a whole and in context, Powell's letter clearly
establishes that MNF-I is a distinct entity created to give the force “the
status that they need to accomplish their mission,” and that the letter
simply reserves the military justice jurisdiction of each country “over
their personnel.”
Furthermore, while placing U.S. personnel under the unified
command of a multinational force may result in the United States
courts lacking jurisdiction over habeas corpus petitions by detainees
held by the multinational force on foreign soil, this does not mean that
American military personnel are completely removed from the control
of the United States government when they are put under a multina-
tional command. To the contrary, they remain under the direction of the
Executive, subject to the oversight of Congress. See U.S. Const. Art. II
§ 2 (setting forth power of President as commander in chief of the
armed forces and in foreign affairs, subject in appropriate cases to
Senate approval); id. at Art. I § 8, cl. 11-16 (setting forth powers of
Congress to declare war, “make rules concerning Captures on Land and
Water,” support and fund an army and navy, “make Rules for the
Government and Regulation” of the armed forces, etc.).
App. 31
Saudi Arabia to avoid constitutional scrutiny by American
courts; and (5) Saudi Arabia would immediately release
the citizen to United States officials upon a request by the
United States government. Jd. at 30-31. The United States
did not offer any facts to rebut these allegations, which
were substantiated by numerous affidavits and other
documentary evidence “of varying degrees of competence
and persuasiveness.” Jd. The court held that the citizen
was entitled to limited jurisdictional discovery to deter-
mine whether he was being held in the actual or construc-
tive custody of the United States. If the citizen could prove
that he was being held “at the behest and ongoing direc-
tion of United States officials,” he could invoke habeas
jurisdiction. Id. at 67.
The court in Abu Ali noted that “(t]he instances where
the United States is correctly deemed to be operating
through a foreign ally as an intermediary for purposes of
habeas jurisdiction will be exceptional, and a federal
court’s inquiry in such cases will be substantially circum-
scribed by the separation of powers.” Jd. at 41. Because the
United States Executive was acting under its foreign
affairs powers in Abu Aili, principles of separation of
powers and international comity “place[d] considerable
limitations on the inquiry (and authority) of a United
States court in this setting.” Jd. at 49. The importance of
recognizing the “considerable limitations” on a court’s
“substantially circumscribed” inquiry is especially appar-
ent in this case, where the Executive acts not only under
its foreign affairs powers, by dealing with dozens of allies
and the United Nations, but also under its war powers.
Applying that “substantially circumscribed” inquiry to
this case, it is clear that the United States is not “operat-
ing through” MNF-I “as an intermediary.” In Abu Ali the
es
App. 32
petitioner presented, and the United States did not at-
tempt to rebut, substantial evidence that the petitioner
was arrested and held by officials of the Kingdom of Saudi
Arabia at the request of the United States, that America
controlled his ultimate disposition, and that his immediate
custodians had no independent interest in detaining him.
In this case, petitioner offers little real evidence that the
United States is using MNF-I as an “intermediary to
detain the citizen.” The habeas petition alleges that
petitioner is “in U.S. custody,” and does not allege that the
United States is acting through some intermediary. In
their briefs, petitioner’s counsel merely handpick quota-
tions from U.S. military leaders to imply that the United
States has control over MNF-I. See Reply Memorandum in
Support of Petitioners’ Application for a Temporary Re-
straining Order [10-1] at 5-6 n.2.
Petitioner also submitted supplemental information
regarding his hearing and sentencing before the Iraqi Trial
Panel. See generally Second Riordan Decl. Therein, peti-
tioner apparently attempts to allege that U.S. military
personnel interfered with the Iraqi proceeding. This
statement, which is disputed by respondents at every
point, and which does not point to any evidence that the
Americans were acting outside of their roles in MNF-I,
falls far short of the kind of allegations that were required
in Abu Ali to obtain jurisdictional discovery, let alone to
establish jurisdiction. To the extent petitioner claims that
the Americans interfered with the fairness of his trial, his
remedies lie in the Iraqi courts. Petitioner has not alleged
the kind of jurisdictional facts that would qualify this case
as one of the “exceptional” instances where the United
App. 33
States is acting through an intermediary to detain a
citizen.” Given the paucity of allegations that petitioner
is in the custody of the United States and not MNF-I,
and the necessarily “substantially circumscribed” nature
of the Court’s inquiry, jurisdictional discovery is not
warranted.
Finally, Eisentrager and Rasul strongly suggest that
there are constitutional aspects to the right to habeas
" This puts the Court at odds with the ruling in Omar v. Harvey,
416 F.Supp. 2d 19 (D.D.C. Feb. 13, 2006), whereby Judge Urbina issued
injunctive relief to bar the transfer of an American citizen from MNF-I
to Iraqi authorities. Judge Urbina held that the citizen, Omar, had pled
sufficient jurisdictional facts to warrant injunctive relief. The “strong
evidence that [Omar] is in the custody of the United States military”
consisted of two e-mails from State Department employees to Omar's
wife, saying that he was “under U.S. military care, custody and control”
and that he was “under control of Coalition Forces (U.S. and MNF).” Id.
at 25. The Court respectfully disagrees that the casual representations
of a State Department employee provide a sufficient basis for what
amounts to piercing the veil between the United States and an entity
comprised of the United States acting jointly with its allies. For
instance, in this case petitioner Munaf’s sister claims that a State
Department employee “confirmed that Mohammad [Munaf] was in U.S.
custody” in a telephone conversation. Mohammed Decl. 14. By the logic
of Omar, this statement would be allowed to trump the determination
by the United States and its allies and the United Nations that the
allied forces shall act jointly through the distinct entity of MNF-I. The
government has been careless in its language, which sometimes reflects
the reality that it is mostly U.S. troops who are carrying out the
mission of MNF-I, and thus it is usually U.S. troops who are doing the
physical “holding” of the petitioner. But it takes more than some
offhand remarks by a few government officials to change the nature of a
multinational force that has been created by the governments of over
two dozen sovereign nations. Much more is required to establish habeas
jurisdiction in the face of Supreme Court precedent respecting the
distinction between the United States when it acts alone and when it
acts as part of an allied force, as well as the “substantially circum-
scribed” nature of the Court’s inquiry under Abu Ali.
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App. 34
corpus, whether or not they are embodied in the jurisdic-
tional statute. To the extent that there remain constitu-
tional aspects of the right which have not been covered by
recent Supreme Court decisions, this does not change the
outcome of this case. The right to habeas corpus embodied
in the statute reflects the fundamental nature of the writ
as captured in the Constitution and as it has survived for
centuries in the common law. It is a right against the
sovereign.
Courts have struggled to describe the scope of the
right by reference to territorial bounds, citizenship, and
the malleable meaning of custody itself. See, e.g., Rasul,
542 U.S. 466, nn.11-14 and accompanying text (collecting
authorities on the territorial ambit of the writ at common
law); Ex parte Mwenya, [1960] 1 Q.B. 241 (same); 1 Op.
Atty Gen. 47 (1794) (Attorney General William Bradford
opining that the writ extends to areas or entities within
the sovereign control of the government). But at least one
thing is constant about the right: it applies only against
the sovereign that grants it. The petitioner here is chal-
lenging his detention on foreign soil, under the authority
of a multinational force, at the request of a foreign gov-
ernment. “[P]rovisions of the Federal] Constitution relating
to the writ of habeas corpus, bills of attainder, ex post
facto laws” and the like “have no relation to crimes com-
mitted without the jurisdiction of the United States
against the laws of a foreign country,” because there the
citizen is treating with a foreign country, and our Consti-
tution gives him rights only as against the United States.
Neely v. Henkel, 180 U.S. 109 (1901). The same holds true
of a duly constituted allied force, against which petitioner
does not have constitutional rights. Whatever independent
effect the habeas provision of the Constitution may have,
App. 35
it does not grant petitioner the right to secure the writ
against one who does not hold him in custody “under or by
color of the authority of the United States” or “in violation
of the Constitution or laws or treaties of the United
States.” The habeas provision of the Constitution therefore
cannot expand the jurisdiction of the Court in this case
beyond that granted by the statute.
In cases such as Hirota, the Supreme Court recog-
nized that when the United States commits troops to a
multinational, allied force, that force is a unique juristic
entity distinct from the United States. The distinction
between unilateral American action and multinational,
allied action is no mere nicety or matter of form. It is a
real distinction with real, substantive consequences. This
distinction was summarized by Justice Jackson, in a
separate memorandum, when he described his reluctance
to vote for review of the claims in Hirota:
On American initiative, under direction of the
President as Commander-in-Chief, this country
invited our Pacific allies, on foreign soil, to coop-
erate in conducting a grand inquest into the al-
leged crimes, including the war guilt, of these
defendants. Whatever its real legal nature, it
bears the outward appearance of an interna-
tional enterprise, undertaken on our part under
the war powers and control of foreign affairs
vested in the Executive. For this Court now to
call up these cases for judicial review under ex-
clusively American law can only be regarded as a
warning to our associates in the trials that no
commitment of the President or of the military
authorities, even in such matters as these, has
finality or validity under our form of government
until it has the approval of this Court. And since
the Court’s approval or disapproval cannot be
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App. 36
known until after the event — usually long after —
it would substantially handicap our country in
asking other nations to rely upon the word or act
of the President in affairs which only he is com-
petent to conduct.
Hirota v. MacArthur, 335 U.S. 876, 878 (Jackson, J.)
(Memorandum).” The United States has placed troops in
Iraq under the unified command of a multinational force.
It has not thereby placed that force and all its troops,
whatever flag they may fly, under the strictures of the
Constitution and the reach of this Court. There is evidence
that this force is a true coalition over which no single
nation has sovereignty, and petitioner has not demon-
strated that it is a mere sham by which the United States
seeks to avoid constitutional accountability. Petitioner is
in a foreign country and in the custody of MNF-I, not the
* Justice Jackson did not participate in the decision in Hirota,
because of his involvement in the Nuremberg war crimes tribunal in
Europe. He explained that his decision to break the tie and allow
argument in Hirota stemmed from a desire to put to rest criticisms of
the tribunal by America’s enemies, and he did not express an opinion on
the Court’s jurisdiction. Hirota v. MacArthur, 335 U.S. 876 (1948)
(Jackson, J.) (Memorandum). While petitioner in this case attempts to
treat the Court’s ruling in Hirota as an isolated case, it is worth noting
that a divided Supreme Court declined to review numerous habeas
petitions implicating dozens of petitioners in Germany following WWII,
though four members of the Court wanted to hear argument on the
jurisdictional issues raised by the petitions. Justice Jackson, who
recused himself from the cases involving German petitioners, inter-
vened to break the tie and secure review in Hirota. The precedential
value of Hirota should thus be considered in light of the robust debate
that centered around the issues at the time. See generally Charles
Fairman, “Some New Problems of the Constitution Following the Flag,”
1 STAN. L. REV. 587 (1949) (discussing post-WWII habeas petitions by
German and Japanese prisoners).
App. 37
United States, and he is therefore beyond the habeas
corpus jurisdiction of this Court."
Ill. CONCLUSION
The Court is aware of the debate over the right of
aliens to obtain the writ of habeas corpus, even when they
are not held in the United States, and so it is aware that
some will consider today’s decision anomalous. But no
court in our country’s history, other than Omar, has ever
found habeas corpus jurisdiction over a multinational force
comprised of the United States acting jointly with its allies
overseas. And the law is legend that in time of actual
hostilities or war, as in Iraq, courts should tread lightly
and give the President, as Commander-in-Chief, the full
power of his office. The President has the power to “employ
[the Nation’s Armed Forces] in the manner he may deem
most effectual to harass and conquer and subdue the
enemy,” Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850),
and such decisions are “delicate, complex, and involve
large elements of prophecy. They are and should be under-
taken only by those directly responsible to the people
“ Petitioner also attempts to invoke jurisdiction under 28 U.S.C.
§§ 1331, 1651, 2201, and 2202, Article I, § 9, cl. 2 and Article III of the
Constitution, and the Due Process Clause of the Fifth Amendment.
None of these provisions provide a proper basis for junsdiction. Because
the petitioner is in the custody of MNF-I, against whom no U.S. law
secures him nghts, he cannot point to a constitutonal provision, law, or
treaty of the United States that his case arises under, and thus he
cannot invoke federal question jurisdiction. His invocation of the Al)
Wnts Act and Declaratory Judgment Act is unavailing because those
remedial statutes presume jurisdiction and do not create it Likewise,
the constitutonal provisions he cates do not independently create
junsdiction for him, nor for that matter do they secure any nghts for
him against hie custodian, MNF-I.
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