Reply Brief — Munaf v. Geren

PE ORS TO TT ERE PRE NY Cee EES Ee Pee Oe Ne SERS OEP ps Ee ee URN) Se oy CSS ee

No. 06-1666

q In The

Supreme Court of the United States

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4 MOHAMMAD MUNAF, ET AL.,

4 Petitioners,

:: v.

3 PETE GEREN, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

: To The United States Court Of

3 For The District Of Columbia Circuit

°

: REPLY BRIEF

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JONATHAN HAFETZ JOSEPH MARGULIES

- Aziz Z. Huq Counsel of Record

5 BRENNAN CENTER FOR MACARTHUR JUSTICE CENTER

: JUSTICE NORTHWESTERN UNIVERSITY

é NEw YORK UNIVERSITY SCHOOL OF Law

4 SCHOOL OF LAW 357 East Chicago Avenue

; 161 Avenue of the Americas Chicago, IL 60611

4 12th Floor Telephone: (312) 503-0890

4 New York, NY 10013

d Eric M. FREEDMAN

4 Susan L. BURKE New York, NY 10025

KATHERINE HAWKINS Telephone: (212) 665-2713

4 BURKE O’NEIL, LLC

4112 Station Street pos aaa

q Philadelphia, PA 19127 Roames. KAPLAN. MILLER

Telephone: (215) 487-6590 & Ciresi ‘

; 2800 LaSalle Plaza

: Minneapolis, MN 55402

4 Telephone: (612) 349-8500

; Counsel for Petitioners

’ 3 COOCKLE LAW BRIEF PRINTING Cor 50) on eet

i OR CALL COLLECT 42) 342-2801

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REPLY BRIEF

Retreating from its position below, the govern-

ment now agrees with Mr. Munaf that the power of a

U.S. court to inquire into the lawfulness of his deten-

tion cannot depend on the happenstance of a foreign

conviction. Cf. Pet. for Cert. at 14-16, Geren v. Omar

(No. 07-394). The parties therefore agree that the

process which took place before the Iraqi courts,

whatever relevance it may have to the merits, “has

nothing to do with the existence of jurisdiction.” Jd. at

13-14.

The parties also agree that the threshold juris-

dictional question is the same in Munaf and Omar.’

The government, however, believes Omar presents a

“superior vehicle” for resolution of this shared issue,

and therefore urges the Court to grant Omar and

hold Munaf. Alternatively, it asks the Court to grant

' The government is incorrect to state that it argued the

merits questions that Judge Randolph reached in his separate

opinion. See Br. for Resp'ts at 17. Judge Randolph concluded the

“the district court had jurisdiction over Munaf's habeas corpus

petition.” Munaf v. Geren, 482 F.3d 582, 585 (D.C. Cir. 2007)

(Randolph, J., concurring). Hence, he rejected the “jurisdictional

and justiciability concerns” that the government raised in its brief.

Br. for Resp'ts at 17; see also Br. for Appellees at 11-16, Munaf v.

Geren, 482 F.3d 582, 585 (D.C. Cir. 2007) (No. 06-1455) (framing

issue solely in terms of jurisdiction and justiciability, and not the

merits question of whether the government has the power to detain

or transfer Mr. Munaf). Thus, as in Omar, the government has

improperly attempted to import a merits question into a jurisdic-

tional appeal — despite the fact that the parties did not brief, and

the lower court did not address, the merits.

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and consolidate both cases. Jd. at 26; see also Br. for

Resp’ts at 19-20. Here, the parties part company.

% As demonstrated at length in Mr. Omar’s re-

sponse to the government’s petition for certiorari, the

_-«-government’s reading of Hirota v. MacArthur is

_ plainly incorrect: the government simply lacks the

__ power to seize and hold its citizens without judicial

oversight, and nothing in Hirota is to the contrary.

_ See generally Br. for the Resp’ts, Geren v. Omar (dkt

_ no. 07-394). For that reason, the government’s peti-

_ tion in Omar should be denied. The proper resolution

of Munaf follows logically from that result: The Court

should grant the petition in Munaf, vacate the deci-

sion below in light of the position now asserted by the

government, and remand for proceedings on the

merits of Mr. Munaf’s petition for a writ of habeas

corpus. If, however, the Court grants the petition in

Omar, then Mr. Munaf agrees with the government

that his petition should be held pending the outcome

in that case.”

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

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

country. See, e.g., Br. for Resp’ts at 15. “Under our Constitution,

a naturalized citizen stands on an equal footing with the native

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

Luria v. United States, 231 U.S. 9, 13 (1913), and the Supreme

Court has long understood the importance to the country of a

rigorous insistence on this principle. See, e.g., Baumgartner v.

United States, 322 U.S. 665 (1944).

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Respectfully submitted,

JOSEPH MARGULIES*

4 MACARTHUR JUSTICE CENTER

a NORTHWESTERN UNIVERSITY SCHOOL OF LAW

q 357 East Chicago Avenue

Chicago, IL 60611

Telephone: (312) 503-0890

Facsimile: (312) 503-1272

Aziz Z. Huq

JONATHAN HAFETZ

BRENNAN CENTER FOR JUSTICE

NEw YORK UNIVERSITY SCHOOL OF LAW

161 Avenue of the Americas, 12th Floor

New York, NY 10013

Telephone: (212) 998-6730

_ Facsimile: (212) 995-4550

SUSAN L. BURKE

KATHERINE HAWKINS

_ BuRKE O’NEIL LLC

4112 Station Street

_ Philadelphia, PA 19127

Telephone: (215) 487-6590

Facsimile: (215) 482-0874

Eric M. FREEDMAN

250 West 94th Street

New York, NY 10025

Telephone: (212) 665-2713

Facsimile: (212) 665-2714

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