Opposition Brief — Munaf v. Geren

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In the Supreme Court of the Ainited States

MOHAMMAD MUNAF, ET AL., PETITIONERS

Vv.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DOUGLAS N. LETTER

JONATHAN H. LEVY

LEWIS 8S. YELIN

Attorneys

ar ne of Justice

D.C. 20530-0001

(aoa) 514-2217

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QUESTIONS PRESENTED

Petitioner, a dual Iraqi-United States national, has

been tried and convicted by an Iraqi court of partici-

pation in a kidnapping-for-hire scheme in Iraq. During

the pendency of the Iraqi government’s criminal pro-

ceedings, petitioner is being held by United States mili-

tary personnel who are serving as part of a multination-

al force acting under the authority of the United Nations

Security Council and at the request of the Iraqi govern-

ment. The questions presented are:

1. Whether the United States courts have jurisdic-

tion to entertain petitioner’s habeas corpus petition chal-

lenging his detention by the multinational force and

seeking an injunction barring his transfer to Iraqi au-

thorities upon completion of the Iraqi criminal proceed-

ings.

2. Whether petitioner’s claims and request for an

injunction against his transfer to [raqi authorities are

otherwise justiciable and within the power of the courts.

(I)

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bennett v. Spear, 520 U.S. 154 (1997) .............006 17

Braden v. 30th Judicial Cir. Ct., 410 U.S. 484 (1973) ..... 6

Hirota v. MacArthur (1948):

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

denied, 409 U.S. 869 (1972) ................2005. 9,17

Johnson v. Eisentrager, 339 U.S. 763 (1950) ........... 12

Neely v. Henkel, 180 U.S. 109 (1901) ................4.. 14

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

for cert. pending, 07-394 (filed Sept. 21, 2007) ..... 8,18

United States ex rel. Keefe v. Dulles, 222 F.2d 390

(D.C. Cir. 1954), cert. denied, 348 U.S. 952 (1955) .... 12

Wilson v. Girard, 354 U.S. 524 (1957) ......... 9, 14, 15, 16

Resolutions and statute:

Res. 1546, U.N. SCOR, U.N. Doe. S/Res. 1546 (2004) . 2,15

Res. 1637, U.N. SCOR, U.N. Doc. S/Res. 1637 (2005) .... 2

Res. 1723, U.N. SCOR, U.N. Doc. S/Res. 1723 (2006) .... 2

(III)

Statute—Continued:

Authorization for Use of Military Force Against Iraq

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

1498

In the Supreme Court of the Gnited States

No. 06-1666

MOHAMMAD MUNAF, ET AL., PETITIONERS

PETE GEREN, SECRETARY OF THE ARMY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-9) is

reported at 482 F.3d 582. The opinion of the district

court (Pet. App. 10-38) is reported at 456 F. Supp. 2d

115.

JURISDICTION

The judgment of the court of appeals was entered on

April 6, 2007. The petition for a writ of certiorari was

filed on June 13, 2007. The jurisdiction of this Court is

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

STATEMENT

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

internationally authorized entity consisting of forces

from approximately 27 nations, including the United

States. Pet. App. 11. It operates in Iraq at the request

(1)

of the Iraqi government and under a United Nations

(U.N.) Security Council mandate authorizing it “to take

all necessary measures to contribute to the maintenance

of security and stability in Iraq.” C.A. App. 30 (Res.

1546, U.N. SCOR, at 4, U.N. Doc. S/Res. 1546 (2004)).'

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

ring and preventing terrorism and detaining individuals

where necessary for imperative reasons of security. /d.

at 36-37. Pursuant to its U.N. mandate, the MNF-I op-

erates under the “unified command” of United States

military officers, see id. at 30, but it is legally distinct

from the United States, has its own insignia, and in-

cludes high-ranking officers from other nations (for ex-

ample, the second in command, Lt. Gen. William Rollo,

is a British officer).

Under the authority of the U.N. Security Council

resolution, the Government of Iraq and the MNF-I

agreed that the MNF-I would maintain physical custody

of individuals suspected of criminal activity in Lraq

pending investigation and prosecution in Iraqi courts

under Iraqi law, because, among other reasons, many

Iraqi prison facilities have been damaged or destroyed

in connection with the ongoing hostilities. See Pet. App.

12. The MNF-I holds those individuals as security in-

ternees during [raqi criminal proceedings, in accordance

with the Security Council resolution and at the request

of the Iraqi government. See C.A. App. 25-26. Thus,

although the MNF-I maintains physical custody over

criminal defendants, they are detained pursuant to the

' That authority is subject to periodic review and reconsideration by

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

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

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

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

MNF-I’s U.N. mandate and under the authority of the

Iraqi government (which prosecutes them under Iraqi

law). Ibid. |

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

Iraqi court under [raqi governance, staffed by Iraqi

judges who apply Iraqi law. Pet. App. 13. The CCCI is

divided into two chambers: an investigative court and a

felony trial court. C.A. App. 22. The investigative court

conducts an investigative hearing, during which wit-

nesses present sworn testimony, to determine whether

there is sufficient evidence to warrant a criminal trial.

Ibid. After evidence is presented, the investigative

judge questions the defendant, who has a right not to

respond. /bid. If the investigative court determines

that there is sufficient evidence to proceed, it forwards

a report to the trial court and recommends charges.

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

review the evidence submitted by the investigative court

and may take additional evidence in formal proceedings.

Id. at 23.

In both investigative and trial proceedings, a defen-

dant is entitled to representation by court-appointed

counsel or counsel of his choosing, and he may submit

evidence and call supporting witnesses. C.A. App. 23,

51. If a defendant is convicted and sentenced to death,

his case is automatically appealed to the Iraqi Court of

Cassation. Jd. at 54.

2. In March 2005, petitioner, a dual Iraqi-United

States citizen residing in Romania, voluntarily traveled

with several Romanian journalists to lraq. C.A. App. 12.

Ostensibly, petitioner was to serve as the journalists’

translator and guide. Jbid. Shortly after their arrival

in Iraq, however, the group was kidnapped and held cap-

tive for over two months. /bid. In May 2005, MNF-I

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troops freed the captives during a military raid and de-

tained petitioner because they suspected that he was

involved in the kidnapping. /d. at 21.

In July 2005, a tribunal of three MNF-I officers con-

ducted a comprehensive review of petitioner’s status

and detention. C.A. App. 21. Petitioner was present at

the hearing, and he had an opportunity to hear the basis

for his detention, make a statement, and call immedi-

ately available witnesses. /bid. The panel determined

that petitioner was a security internee who should con-

tinue to be detained for imperative reasons of security,

in accordance with the MNF-I’s U.N. mandate. Ibid.

The MNF-I subsequently referred petitioner’s case to

the CCCI for investigation and possible trial. Jd. at 22.

That referral is consistent with the manner in which the

MNF-I has treated other security internees being held

by the MNF-I under international authority. /bid.

Petitioner admitted on camera, in writing, and in

front of the Iraqi investigative court that he participated

as an accomplice in the kidnapping for profit of the Ro-

manian journalists. C.A. App. 23. Petitioner also ap-

peared as a witness against his accomplices, including

his brother-in-law. /d. at 23, 25. In those hearings, peti-

tioner identified the other kidnappers and admitted his

role in the scheme. /d. at 25. Petitioner was repre-

sented by counsel of his choice at the hearings, and was

afforded the opportunity to present evidence and call

witnesses. /d. at 51. The Iraqi investigative court de-

termined that there was sufficient evidence to proceed,

and it referred the case to the trial court. Jd. at 25.

A United States military officer, who is a member of

the MNF-I, appeared in the trial court at the request of

the Romanian government to make a formal complaint

against petitioner and his codefendants, as is customary

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under the inquisitorial system. C.A. App. 52. Weeks

before he made the complaint, the officer filed with the

trial court a formal letter from the Romanian Embassy

authorizing him to make the complaint on Romania’s

behalf. [bid.

During the trial, petitioner and his codefendants re-

canted the confessions they had made in the investiga-

tive court, alleging that [raqis or Romanians had forced

them to confess. C.A. App. 52. Although petitioner has

been in MNF-I custody since his capture, neither peti-

tioner nor any of the other defendants alleged that the

MNF-I had coerced their confessions. /d. at 52.

At his trial in the CCCI, petitioner and his attorneys

again had the opportunity to present evidence and call

witnesses. Pet. App. 14. After considering the evidence

gathered by the investigative court, taking additional

statements from the defendants, and hearing argument

from the Iraqi prosecutor and multiple defense attor-

neys, the trial court found petitionér and his five code-

fendants guilty of kidnapping and sentenced them to

death. C.A. App. 51-53.

An automatic appeal to the Iraqi Court of Cassation

is pending. See C.A. App. 54. The MNF-I is continuing

to hold petitioner on behalf of the Iraqi government un-

til the resolution of his appeal in Iraq. (Because the

court of appeals granted an injunction pending appeal

and later stayed the issuance of its mandate pending the

disposition of petitioner’s certiorari petition, respon-

dents may not transfer petitioner to the Iraqi authori-

ties while that petition is pending before this Court.).”

* Relying entirely on hearsay evidence, petitioner suggests that the

United States military officer who represented Romania in the CCCI

proceeding “met ex parte with the presiding Iraqi judge for approxi-

mately fifteen minutes” and that “(immediately thereafter, that judge

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3. Petitioner, through his sister as next friend, filed

this habeas corpus action seeking, among other things,

his release from custody and an order barring his trans-

fer to Lraqi custody. Pet. App. 14.

The district court dismissed this habeas action for

lack of subject matter jurisdiction. Pet. App. 10-38. The

court explained that custody is a critical factor in estab-

lishing habeas jurisdiction because “[tJhe writ of habeas

corpus does not act upon the prisoner who seeks relief,

but upon the person who holds him.” /d. at 19-20 (quot-

ing Braden v. 30th Judicial Cir. Ct., 410 U.S. 484, 494-

495 (1973)).

The district court determined that petitioner is not

in the custody of the United States, but instead is “in the

[physical] 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 na-

tions acting jointly,” as well as in the “constructive cus-

tody of the Republic of Iraq, which is seized of jurisdic-

tion in the criminal case against him.” Pet. App. 22.

With regard to Iraq, the court emphasized that “(t]he

writ of habeas corpus will not reach to a foreign sover-

eign,” and here, “[p]etitioner voluntarily entered the

sovereign country of Iraq and has been convicted by the

courts of that country for a violation of Iraqi law.” /bid.

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

(per curiam), the district court further held that “(i]t

does not change the outcome to point out that [peti-

tioner] is in the physical custody of U.S. troops in their

convicted and sentenced | petitioner] to die.” Pet. 7 (citing C.A. App. 49

(affidavit of law student reporting conversation conveyed to him)). The

officer has affirmed unequivocally, however, that “{a]t no time during

the trial was I present in the courtroom with members of the court

when defense counsel were not also present.” C.A. App. 53.

capacity as participants in MNF-I.” Pet. App. 23. In

Hirota, Japanese citizens filed motions in the Supreme

Court for leave to file habeas petitions challenging their

sentences by a military tribunal in Japan. 338 U.S. at

198. As the district court here noted, “American mili-

tary personnel participated in the tribunal, and the pris-

oners were in the physical custody of U.S. troops.” Pet.

App. 24. In his capacity as Supreme Commander for the

Allied Powers, United States General Douglas MacAr-

thur established the tribunal “as the agent of the Allied

Powers.” /bid. (quoting Hirota, 338 U.S. at 198). The

Supreme Court denied the petitioners’ motions because

“the authority under which the tribunal acted * * *

emanated from the multinational Allies and not the

United States in its independent capacity.” /bid. Ac-

cordingly, the district court explained, the tribunal in

Hirota was “not a tribunal of the United States,” and

the prisoners were not in the custody of the United

States. bid. (quoting Hirota, 338 U.S. at 198).

The district court rejected petitioner’s attempt to

distinguish Hirota on the ground that it did not involve

the detention of a United States citizen. Pet. App. 24-25.

The court explained that Hirota turned on the fact that

“the petitioners were held under the authority of enti-

ties that were ‘not a tribunal of the United States,’” and

“(t]he identity of the custodian, and the concomitant lack

of habeas jurisdiction, would remain the same regard-

less of the petitioners’ citizenship.” /d. at 25 (quoting

Hirota, 338 U.S. at 198).

The district court also rejected petitioner’s conten-

tion that the United States merely used the MNF-I as

an intermediary to carry out its wishes. Pet. App. 29-32.

It explained that “[t]here is evidence that this force is a

true coalition over which no single nation has sover-

eignty, and petitioner has not demonstrated that it is a

mere sham by which the United States seeks to avoid

constitutional accountability.” Jd. at 36.

4. The court of appeals affirmed. Pet. App. 1-9.

a. The court of appeals held that dismissal was re-

quired by Hirota and subsequent District of Columbia

Circuit precedents because neither the MNF-I nor the

CCCI is “a tribunal of the United States.” Pet. App. 2,

3-4. Like the district court, the court of appeals ex-

plained that “Hirota did not suggest any distinction be-

tween citizens and noncitizens who were held abroad

pursuant to a judgment of a non-U.S. tribunal.” Jd. at 4.

Rather, the court determined, “the critical factor in

Hirota was the petitioners’ convictions by an interna-

tional tribunal.” /bid. (quoting Omar v. Harvey, 479

F.3d 1, 7 (D.C. Cir. 2007), petition for cert. pending, No.

07-394 (filed Sept. 21, 2007)). “As in Hirota,” the court

explained, “(petitioner’s] case involves an international

force, detention overseas, and a conviction by a non-U.S.

court.” Ibid. “[Cjonducting habeas proceedings in the

face of such a conviction,” the court continued, “risks

judicial second-guessing of a non-U.S. court’s judgments

and sentences.” /d. at 4-5.

The court of appeals rejected petitioner’s contention

that he challenged only the lawfulness of his detention,

as opposed to his Iraqi conviction. Pet. App. 5-6. It ex-

plained that petitioner is detained by a multinational

force and his continued detention depends on his Iraqi

conviction. /d. at 5. “[I}f the charges were dismissed,

and the United States forces were to continue to hold”

petitioner, the court stated, “this would be a different

case” under the Omar decision. /bid.

b. Judge Randolph concurred in the judgment. Pet.

App. 7-9. He concluded that the district court had juris-

diction because petitioner “is an American citizen * * *

held by American forces overseas.” Jd. at 7. Neverthe-

less, Judge Randolph would have denied the habeas pe-

tition and request for an injunction against transfer on

the merits because “the United States is holding [peti-

tioner] because of his conviction by a foreign tribunal.”

Id. at 8.

Judge Randolph concluded that this case is governed

by this Court’s decision in Wilson v. Girard, 354 U.S.

524 (1957), where the Court set aside an injunction

against the transfer of an American soldier within Japan

to Japanese authorities to face charges stemming from

a shooting in Japan. In Wilson, Judge Randolph recog-

nized, this Court reaffirmed that a “sovereign nation has

exclusive jurisdiction to punish offenses against its laws

committed within its borders, unless it expressly or im-

pliedly consents to surrender its jurisdiction.” Pet. App.

9 (quoting Wilson, 354 U.S. at 529). Pointing to the Au-

thorization for Use of Military Force Against Iraq Reso-

lution of 2002, Pub. L. No. 107-243, 116 Stat. 1498, and

the U.N. Security Council Resolutions establishing the

MNF-I, Judge Randolph concluded that Wilson compels

dismissal of this habeas action and request for an injunc-

tion against transfer. See Pet. App. 9 (citing Holmes v.

Laird, 459 F.2d 1211 (D.C. Cir.), cert. denied, 409 U.S.

809 (1972)).

DISCUSSION

The court of appeals correctly held that United

States courts lack jurisdiction to adjudicate petitioner’s

detention by a multinational force operating in a foreign

nation pursuant to international authority. Even if Uni-

ted States courts had such jurisdiction, petitioner’s ac-

tion and, in particular, his request for an injunction

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against transfer to Iraqi authorities, would be non-justi-

ciable under the separation-of-powers and international-

comity doctrines. This habeas petition amounts to an

impermissible collateral attack on petitioner’s conviction

by an Iraqi court based on serious criminal conduct that

petitioner—a dual Iraqi citizen—committed in Iraq in

violation of Iraqi law. The United States courts lack

authority to accommodate such attacks.

Although the court of appeals correctly resolved this

case, the basic questions presented are exceptionally

important. The same basic questions, however, are pre-

sented by the government’s petition for a writ of certio-

rari in Geren v. Omar, No. 07-394 (filed Sept. 21, 2007).

Omar provides a better vehicle for considering the full

set of issues concerning the authority of the United

States courts to entertain habeas petitions filed on be-

half of individuals detained abroad by a multinational

force acting under international authority. Accordingly,

this Court should hold the petition for a writ of certio-

rari in this case and dispose of it as appropriate in light

of its disposition of Omar. Alternatively, the Court

could grant both petitions and consolidate the cases for

oral argument.

1. As explained in the government’s petition for a

writ of certiorari in Omar (at 11-16), the threshold juris-

dictional question presented by this habeas action is

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

(per curiam). In both this case and Hirota, the habeas

petitioners were in the physical custody of United States

military officers, but those officers acted as part of a

multinational force under international authority. Here,

the United Nations, the United States, and the 26 other

nations participating in the multinational force all view

the MNF-I as having a distinct identity from the forces

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of any particular nation. There is no basis for a United

States court to countermand that judgment and disre-

gard the MNF-I’s international origin and authority.’

Petitioner argues (Pet. 12-16) that the United States

courts nonetheless have jurisdiction over his habeas pe-

tition because he is a United States citizen detained by

United States military personnel. As Justice Douglas

recognized in his concurring opinion in Hirota, however,

the rationale of Hirota does not lend itself to a citizen-

ship exception. 338 U.S. at 202-203, 205; see Pet. App.

4 (“Hirota did not suggest any distinction between citi-

zens and noncitizens who were held abroad pursuant to

the judgment of a non-U.S. tribunal.”).

The cases on which petitioner relies (Pet. 13) in argu-

ing to the contrary are inapposite because, as the dis-

_ trict court observed, they involve “petitioners * * * in

the custody of the United States alone, in its capacity as

the United States, and not by any multinational force”

acting under international authority. Pet. App. 29. Citi-

zenship, in itself, does not create jurisdiction when a

United States national is held abroad under interna-

tional authority. If it did, United States courts could

entertain habeas actions brought by citizens detained

pursuant to foreign convictions. But it is beyond dispute

that such jurisdiction is lacking. The same basic princi-

ple that prevents a United States citizen from filing a

habeas petition in the United States courts challenging

* Petitioner misses the point by arguing (Pet. 26) that “a unilateral

determination by the Executive to participate in multilateral military

operations [cannot] suspend the Great Writ for American citizens.” The

question is not whether the writ has been suspended (it has not); rather,

the question is whether it has any application to custody by a multina-

tional force operating abroad under international authority, and under

Hirota it does not.

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his detention in a French prison under French law (see

United States ex rel. Keefe v. Dulles, 222 F.2d 390 (D.C.

Cir. 1954), cert. denied, 348 U.S. 952 (1955)) prevents

him from challenging his detention pursuant to the in-

ternational authority at issue.‘

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

petitioner points (Pet. 12-13), does not compel a differ-

ent result. In that case, the Court observed that citizen-

ship is a “head of jurisdiction,” 339 U.S. at 769, but that

statement was made in the context of a case in which the

habeas petitioners (who were not United States citizens)

were indisputably being held under the exclusive au-

thority of the United States. Indeed, this Court went

out of its way to note at the outset of its decision that

“(t]he proceeding [pursuant to which the habeas peti-

tioners were detained] was conducted wholly under

American auspices.” /d. at 766. Accordingly, Eisentra-

ger does not compel the exercise of jurisdiction in this

case, where the habeas petitioner is being detained

abroad by a multinational force under international au-

thority.

There is no question that, despite petitioner’s United

States citizenship, United States courts would lack juris-

diction to entertain his habeas petition if he were al-

ready in Iraqi custody pursuant to his criminal convic-

* Petitioner asserts (Pet. 4) that the government conceded in Omar

that Omar is under the authority and control of the United States. That

is incorrect. As the government has consistently argued throughout

this litigation and the Omar case, both petitioner and Omar are in the

custody of the MNF-I, which is a distinct, multinational entity that

operates under the unified command of the United States pursuant to

the U.N.’s mandate, just as the Allied Powers operated under General

MacArthur's command in Hirota. See Pet. at 12 n.3, Omar, supra (No.

07-394).

‘

tion for conduct in Iraq. The result is no different

where, as here, United States forces are simply holding

petitioner during the Iraqi criminal proceedings against

him as part of a multinational force acting under inter-

national authority and at the request of the Iraqi gov-

ernment. In any event, because Omar also involves a

United States citizen, questions concerning the rele-

vance of United States citizenship are squarely pre-

sented by the government’s petition in that case.

2. Even if the United States courts had subject mat-

ter jurisdiction, the judgment of the court of appeals

would be correct because petitioner is not entitled to the

extraordinary relief he seeks, as Judge Randolph con-

cluded in his concurring opinion.

Like Omar, petitioner voluntarily traveled to an ac-

tive combat zone in Iraq and committed criminal of-

fenses there. If petitioner should not be detained in

Baghdad by United States troops in their role as part of

the MNF-I, or should not be transferred at the appro-

priate time to Iraqi authorities, those are decisions to be

made by the Executive Branch based on military and

foreign policy determinations that would be heavily in-

fluenced by the judgments of United States officials on

the ground in Iraq in the midst of the war there. Re-

spondents are not aware of any judicial decision (other

than Omar) overriding the military’s determination

of how to deal with an individual captured in an active

combat zone abroad who is determined to pose a secu-

rity threat to United States forces and local authorities

and residents alike. See Pet. App. 37. And the United

States courts lack authority to grant such relief, as the

government’s petition in Omar explains (at 17-22, 24-25).

Moreover, exercise of habeas jurisdiction in this case

is barred by principles of international comity. Like

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Omar, petitioner seeks to enjoin respondents from turn-

ing him over to the custody of the Iraqi government.

C.A. App. 18-19. He even seeks an order requiring the

United States to remove him from Irag and bring him to

this country. /bid. As the government’s Omar petition

explains (at 18-22), that is not the sort of relief available

in habeas, and it is inconsistent with overriding princi-

ples of comity. Indeed, as this Court long ago observed,

an American citizen “cannot complain if required to sub-

mit to such modes of trial and to such punishment as the

laws of that country may prescribe for its own people,

unless a different mode be provided for by treaty stipu-

lations between that country and the United States.”

Neely v. Henkel, 180 U.S. 109, 123 (1901).

While petitioner cites authority (Pet. 17-18) for the

proposition that the Executive’s extradition of a person

from the United States to another country requires

treaty or statutory authorization, and is therefore sub-

ject to limited judicial review, petitioner is already in

Iraq, having traveled there voluntarily. As such, this

case does not involve an extradition and the Executive

has discretion—backed by both statute and the Nation’s

international commitments, see note 5, infra—to deter-

mine whether to surrender him to Iraqi authorities for

criminal proceedings and punishment under Iraqi law.

See Pet. at 17-20, Omar, supra (No. 07-394).

As Judge Randolph determined, this Court’s decision

in Wilson v. Girard, 354 U.S. 524 (1957), is “conclusive”

in that regard. Pet. App. 8. In Wilson, this Court up-

held the Executive’s discretion, in the absence of a con-

trary treaty or statute, to surrender a United States

soldier in Japan to Japanese authorities for criminal

prosecution based on a crime that he allegedly commit-

ted in Japan. 354 U.S. at 529-530. Because Iraq has not

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surrendered its jurisdiction over criminal offenses com-

mitted within Iraq, and because no treaty or statute

bars petitioner’s transfer to Iraqi authority, Wilson con-

trols here. Any order by a United States court that in-

terferes with petitioner’s continued detention while his

Iraqi criminal appeal is pending, or that prohibits his

transfer to Iraqi custody after his appeal (should that be

unsuccessful), would impermissibly interfere with the

sovereign acts of a foreign nation. See Pet. at 17-22, 24-

25, Omar, supra (No. 07-394).°

3. The foregoing separation-of-powers and interna-

tional-comity concerns are even more pronounced in this

case than in Omar because petitioner is a dual Lraqi-

United States citizen who has already been tried and

convicted by an [Iraqi court. Petitioner’s Iraqi citizen-

ship distinguishes this case and heightens the comity

concerns inherent in preventing Lraq from punishing

him for crimes he committed in that country.

° While the government’s principal submission is that no treaty or

statutory authority is required for the MNF-I to transfer petitioner

within Iraq to Iraqi custody, the government does not concede, as

petitioner asserts (Pet. 23 n.13), that no statute authorizes the transfer.

Rather, the Authorization for Use of Military Force Against Iraq Reso-

lution of 2002, Pub. L. No. 107-243, 116 Stat. 1498, authorizes United

States forces to “enforce all relevant United Nations Security Council

resolutions regarding Iraq,” Pub. L. No. 107-243, § 3(a)(2), 116 Stat.

1501, and U.N. Security Council Resolutions 1546 and 1637 call on the

MNF-I toestablish a security partnership with the Government of Iraq

and to coordinate with it on matters of security, see, ¢.g., Res. 1546,

U.N. SCOR, para. 11, U.N. Doc. S/Res. 1546 (2004). As Judge Ran-

dolph recognized, those provisions provide any authority needed for

United States forces, acting as part of the MNF-I, totransfer a security

internee like petitioner within Iraq to Iraqi custody. Pet. App. 8. In

any event, as Wilson makes clear, the burden is on petitioner to identify

a treaty or statute barring such a transfer, see 334 U.S. at 529-530, and

he has not done so.

Even setting petitioner’s Iraqi citizenship to the side,

his habeas petition amounts to an impermissible collat-

eral attack on his foreign conviction. A “sovereign na-

tion has exclusive jurisdiction to punish offenses against

its laws committed within its own borders.” Wilson, 354

U.S. at 529. Thus, as petitioner concedes (Pet. 21), “it is

axiomatic that an American court does not provide col-

lateral review of the proceedings in a foreign tribunal.”

Petitioner’s contention (Pet. 22) that he is not attack-

ing his Iraqi conviction is contradicted by the record. In

his filings below, petitioner argued that he had been

convicted and sentenced “by an Iraqi court operating

under glaring procedural deficiencies and the direct ma-

nipulation of U.S. military personnel.” Docket Entry

No. 12, at 1 (D.D.C. Oct. 13, 2006); see id. at 3 (“The pro-

ceeding’s gross procedural deficiencies and manipulation

by U.S. military officials highlights the vital importance

of this Court’s habeas corpus review.”). In this Court,

petitioner continues to assert (Pet. 22 & n.12) that those

proceedings were improperly influenced by the United

States—a contention the United States vigorously de-

nies, see pp. 4-5 & n.2, supra, but that strongly confirms

that petitioner is attacking his Iraqi conviction and sen- ,

tence.

Any doubt that petitioner is trying to use this habeas

action to evade the jurisdiction of the Lraqi courts and to

prevent his sentence from being carried out is elimi-

nated by the relief he seeks, including an injunction bar-

* Respondents agree with petitioner (Pet. 19) that the jurisdiction of

the United States courts under Hirota does not depend on whether an |

individual has been convicted by a foreign tribunal. See Pet. at 13-16,

Omar, supra (No. 07-394). As explained in the text, however, peti- ;

tioner’s conviction by the Iraqi court nevertheless provides further sup-

port for the conclusion that his claims are non-justiciable.

ring respondents from transferring petitioner to Iraqi

custody and instead requiring respondents to transport

petitioner to the United States. See C.A. App. 18-19; see

also Holmes v. Laird, 459 F.2d 1211, 1225 (D.C. Cir.)

(holding that it would be “beyond the purview of this

Court” to enjoin the Executive’s surrender to German

custody of United States servicemen who had been con-

victed by a German court before fleeing to the United

States), cert. denied, 409 U.S. 869 (1972).

c. Petitioner incorrectly asserts (Pet. 9) that, in the

lower courts, “neither party had briefed” the concerns

that Judge Randolph identified in his separate opinion,

which found that there was jurisdiction but nevertheless

concluded that this action must be dismissed. To the

contrary, the government devoted 22 pages of its court

of appeals brief to its political-question and internation-

al-comity arguments, and petitioner likewise briefed the

justiciability of his claims in that court. See Gov’t C.A.

Br. 34-56; id. at 44 n.7 (specifically relying on Wilson,

the case Judge Randolph found conclusive); Pet. C.A.

Reply 22-25. The government is entitled to defend the

court of appeals’ judgment on alternative grounds, espe-

cially considering that Judge Randolph himself relied on

those grounds. See, e.g., Bennett v. Spear, 520 U.S. 154,

166 (1997). And here, the jurisdictional and justiciability

concerns are interrelated because, as the court of ap-

" Petitioner asserts (Pet. 22) that, in addition to challenging the Iraqi

proceedings and his potential transfer within [raq to Iraqi custody, he

also challenges his custody by United States forces acting as part of the

MNF-I. But petitioner’s challenge to his MNF-I custody would be

mooted by his transfer to Iraqi custody (which he seeks to block). Thus,

this action boils down to an attempt by petitioner to evade the jurisdic-

tion of the Iraqi courts and to prevent his conviction from being given

effect.

ee ee ee ee ee eee eae ee eee ee ee, eee SS ae 2

peals recognized, the political-question and internation-

al-comity problems would directly stem from the United

States’ courts’ assertion of jurisdiction over actions of a

multinational force operating under international au-

thority in a foreign war zone. See Pet. App. 4-5 (“[C]on-

ducting habeas proceedings in the face of [a foreign]

conviction risks judicial second-guessing of a non-U.S.

court’s judgments and sentences.”).

Justice Jackson noted that very fact in Hirota:

For this Court now to call up these cases for judicial

review under exclusively American law can only be

regarded as a warning to our associates in the trials

that no commitment of the President or of the mili-

tary authorities, even in matters such as these, has

finality or validity under our form of government

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

Court’s approval or disapproval cannot be known

until after the event—usually long after—it would

substantially handicap our country in asking other

nations to rely upon the word or act of the President

in affairs which only he is competent to conduct.

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

3. As noted, the government’s petition for a writ of

certiorari in Omar, supra, presents the same threshold

jurisdictional question presented in this case. In Omar,

a dual United States-Jordanian citizen who voluntarily

: traveled to Iraq, allegedly committed serious crimes

! there, and was captured in an active combat zone by the

MNF-I is challenging his detention by United States

. troops acting as part of the MNF-I, as well as his poten-

: tial transfer to Iraqi custody or trial by the CCCI.

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

for cert. pending, No. 07-394 (filed Sept. 21, 2007). The

é een Ss a ese

District of Columbia Circuit held that the United States

courts have jurisdiction over Omar’s habeas petition and

that his claims are justiciable. /d. at 9, 10-11. That

court also upheld an injunction against Omar’s transfer

to [raqi custody or presentation to the CCCI for investi-

gation and prosecution. /d. at 11-12, 14.

Because the District of Columbia Circuit upheld the

district court’s injunction as well as its assertion of juris-

diction in Omar, that case provides a better vehicle than

this case for considering the full set of issues concerning

the authority of the United States courts to entertain

habeas petitions filed on behalf of individuals detained

by a multinational force abroad acting under interna-

tional authority. In addition, this case, unlike Omar,

involves a dual Iraqi-United States citizen who has al-

ready been convicted by the Iraqi courts for violating

Iraqi law. As discussed, that unusual fact pattern makes

the justiciability concerns even stronger in this case

than in others, which makes it a less ideal vehicle for

considering questions of more general applicability.

Accordingly, the Court should hold the petition for a

writ of certiorari in this case and dispose of it as appro-

priate in light of its disposition of Omar. Alternatively,

this Court could grant both petitions and consolidate the

cases for oral argument.

;

)

;

CONCLUSION

The petition for a writ of certiorari should be held

pending Geren v. Omar, No. 07-394, and disposed of as

appropriate in light of this Court’s disposition of Omar.

Respectfully submitted.