Amicus Curiae Brief — Munaf v. Geren

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MOHAMMAD MUNAPFP, ET AL.

Petitioners,

PETE GEREN, ET AL.,

Respondents.

PETE GEREN, ET AL.

Petitioners,

SANDRA K. OMAR, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE AMERICAN BAR

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF HABEAS PETITIONERS

WILLIAM H. NEUKOM

Counsel of Record

PRESIDENT

Of Counsel: AMERICAN BAR ASSOCIATION

DAVID J. CYNAMON 321 N. CLARK STREET

MATTHEW J. MACLEAN CHICAGO, IL 60610

DARON T. CARREIRO (312) 988-5000

Attorneys for Amicus Curiae

American Bar Association

February 28, 2008

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TABLE OF CONTENTS

a ee i

TABLE OF AUTHORITIES .................... ii

INTEREST OF THE AMICUS CURIAE.......... 1

SUMMARY OF ARGUMENT ................... 5

ETT TTT TET CPT T TTT Te 6

I. MEANINGFUL REVIEW OF DETENTION

IS FUNDAMENTAL TO THE RULE OF LAW... 6

A. Habeas Corpus Is Deeply Rooted in the

Common Law and Our Constitutional

B. Due Process Requires That Every Detainee

Be Informed of the Allegations Against Him

and Afforded a Meaningful Opportunity to

Challenge His Detention................. 9

I]. THE GOVERNMENT'S POSITION WOULD

UNDERMINE THE RULE OF LAW AND

THE INDEPENDENCE OF THE JUDICIARY. . 11

A. No Citizen Should Be Detained Based

Solely upon Untested Allegations.......... 11

B. Participation in a “Multinational Force”

Should Not Defeat J uriediction over United

ee ee eke 12

C. A Subsequent Judgment of an Iraqi Court

Should Not Affect the Jurisdiction of a

United States Court over a Prior Habeas

Petition of a United States Citizen......... 13

EFI PEPE TTT TTT CTE TTT ELT TT TTT 15

TABLE OF AUTHORITIES

FEDERAL CASES

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

ee cack a ediew nie ees 4ece 12

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)... .. 8

Duncan v. Kahanamoku, 327 U.S. 304 (1946) ...... 8

Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949).... 14

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)... .. 5, 10-15

Hirota v. MacArthur, 338 U.S. 197 (1948) ...... 13, 14

INS v. St. Cyr, 5383 U.S. 289 (2001).............. 8

Johnson v. Avery, 393 U.S. 483 (1969) ........... 8

Johnson v. Eisentrager, 339 U.S. 763 (1950) ...... 14

Ex parte Milligan, 71 U.S. 2 (1866).............. 10

Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007) .... 14

Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007) ...... 14

Ex parte Quirin, 317 U.S. 1 (1942) ............ 8, 10

Rasul v. Bush, 542 U.S. 466 (2004)............ 6, 12

Reid v. Covert, 354 U.S. 1 (1957) ................ 14

Rodriguez de Quijas v. Shearson/ American

Express, Inc., 490 U.S. 477 (1989) ............... 14

Williams v. Kaiser, 323 U.S. 471 (1945).......... 6

CONSTITUTIONAL PROVISIONS

ee EE, cic casbebeessubies eseee 8

FOREIGN CASES

King v. Overton, 1 Sid. 387, 82 Eng. Rep. 1173

RR ee ha ee ey ee 7

King v. Salmon, 2 Keble 450, 84 Eng. Rep. 282

es ea kis beg 7

FOREIGN STATUTES

PRRs GE Be, WG. BEE ccc ccccccccccscns 7

Habeas Corpus Act of 1679, 31 Car.2¢.2......... 7

MISCELLANEOUS

Henry de Bracton, De Legibus Et

Consuetudinibus Anglia: (Thorne Ed.)............ 6

William Duker, A Constitutional History of

ee eee bensenus 7

The Federalist No. 84 (Alexander Hamilton) ...... 6

Sir Matthew Hale, The History of the Common

Law of England (C. Gray Ed. 1971) .............. 7

Thomas Jefferson, First Inaugural Address

ee ee os ee enw eves s 6

Charles Le Quesne, A Constitutional History

i ete cee eVene Nese eehesenees 7

INTEREST OF THE AMICUS CURIAE!

Pursuant to Supreme Court Rule 37.3, the American

Bar Association (“ABA”), as amicus curiae, respectfully

submits that the issues now before the Court must be re-

solved in a way that fulfills legitimate national security

objectives while preserving the rule of law as embodied in

the writ of habeas corpus.

The ABA is the largest voluntary professional mem-

bership organization and the leading organization of legal

professionals in the United States. The ABA’s member-

ship of more than 413,000 spans all 50 states and other

jurisdictions, and includes attorneys in private law firms,

corporations, nonprofit organizations, government agen-

cies, and prosecutorial and public defender offices, as well

as judges, legislators, law professors, and students.’

The ABA’s mission “is to be the national representa-

tive of the legal profession, serving the public and the pro-

fession by promoting justice, professional excellence and

respect for the law.” Among its goals are “[t]o increase

public understanding of and respect for the law, the legal

1 Pursuant to Supreme Court Rule 37.6, amicus curiae certifies

that no counsel for a party authored this brief in whole or in

part and that no person or entity, other than amicus, its mem-

bers, or its counsel, has made a monetary contribution to its

preparation or submission. The parties have filed letters con-

senting to the filing of this brief with the Clerk of the Court.

2 Neither this brief nor the decision to file it should be inter-

preted to reflect the view of any judicial member of the Ameri-

can Bar Association. No inference should be drawn that any

member of the Judicial Division Council has participated in the

adoption or endorsement of the positions in this brief. This brief

was not circulated to any member of the Judicial Division

Council prior to filing.

process, and the role of the legal profession” and “[t]o ad-

vance the rule of law in the world.”8

In pursuing its mission and goals, the ABA has estab-

lished a long-standing commitment to protecting habeas

corpus and due process rights. The ABA recognizes the

government's responsibility to protect against terrorist

activities, but has long concluded that habeas corpus is

necessary to prevent arbitrary or unlawful detentions,

and that judicial review of detentions is fundamental to

this nation’s constitutional system and to the rule of law.

The ABA has developed additional competence in this

area through its efforts to promote the rule of law, both in

this country and elsewhere, through its Rule of Law Ini-

tiative. This work has confirmed that the rule of law has

no force against a government that can detain a person

without judicial review.

The ABA also created a Task Force on the Treatment

of Enemy Combatants in March 2002 to examine the

framework surrounding the detention of United States

citizens declared to be enemy combatants. The Task Force

considered the complex questions of statutory, constitu-

tional, and international law and policy raised by such

5’ ABA Mission and Association Goals, available at

http://www.abanet.org/about/goals.html (last visited Feb. 3,

2008).

4 In its most recent list of prioritized and adopted policy posi-

tions, the ABA “urges that individuals detained as ‘enemy com-

batants’ be afforded certain procedural rights such as access to

counsel and the opportunity for meaningful judicial review of

their status, including the right to petition for habeas corpus.”

ABA Legislative and Governmental Priorities for 2007, avail-

able at http://www.abanet.org/poladv/priorities (last visited Fe.

3, 2008).

- ea

detentions. In its preliminary report, the Task Force con-

cluded:

United States citizens who are detained by the

Government have a right under the Constitution to

seek release from their detention through a peti-

tion for writ of habeas corpus, a fundamental right

which Congress has not suspended. Citizen detain-

ees who have not been charged with violations of

United States criminal laws or the law of war

should therefore be afforded a prompt opportunity

for judicial review of the basis for their continued

confinement.°®

In February 2002, the ABA’s House of Delegates

adopted a policy urging that proceedings before military

tribunals guarantee habeas corpus petition rights, certain

due process rights, and the right to independent and im-

partial judicial review of executive detention, particularly

the detention of United States citizens. In February

2003, the ABA’s House of Delegates adopted a policy urg-

ing that United States citizens detained as “enemy com-

batants” be afforded the opportunity for meaningful judi-

cial review and access to counsel.’

5 Preliminary Report of the ABA Task Force on Treatment of

Enemy Combatants at 23 (August 8, 2002), available at

http://www.abanet.org/poladv/priorities/enemy/enemy_combata

nts.pdf.

6 Revised Report 8C (February 4, 2002), available at

http://www .abanet.org/poladv/letters/107th/militarytrib8c.pdf

(last visited Feb. 3, 2008).

7 Revised Report 109 (Feb. 10, 2003), available ait

http://www.abanet.org/leadership/recom mendations03/109.pdf

(last visited Feb. 3, 2008). The report supporting thie policy

tracked the legal history of the “enemy combatant” designation,

as well as United States and international human rights laws

(footnote cont’d)

, = | latins a

The ABA’s deep concern for protecting habeas corpus

rights and for ensuring meaningful judicial review has

also been shown in the ABA’s recent submission of amicus

curiae briefs in this Court® and in the United States Court

of Appeals for the Second Circuit.

The ABA does not take the position that a citizen may

never be detained as an enemy combatant or transferred

to the custody of a foreign government. However, as the

ABA has stated, “Every person that is detained by our

government should have the opportunity for a fair hear-

ing that examines the basis for his/her detention” and fur-

ther, that “[t]he writ of habeas corpus entrusts the judici-

ary to ensure that the detention of an individual has legal

and factual support.” !°

and treaties recognizing a detainee’s right to judicial review.

The report concluded that detainees have a right to judicial re-

view to determine whether there is a factual and legal basis for

their detention. Id. at 7.

8 Brief for the American Bar Association as Amicus Curiae in

Support of Petitioners, Hamdi v. Rumsfeld, No. 03-6696 (Feb.

23, 2004) (asserting that federal courts must be able to conduct

meaningful judicial review when United States citizens are de-

tained as “enemy combatants”); Brief of the American Bar As-

sociation as Amicus Curiae in Support of Petitioners, Boumedi-

ene v. Bush, Nos. 06-1195, 06-1196 (U.S. argued Dec. 5, 2007)

(asserting that denial of habeas corpus would conflict with the

Constitution and undermine the promotion of the rule of law).

® Brief for the American Bar Association as Amicus Curiae in

Support of Petitioner-Appellee-Cross Appellant, Padilla v.

Rumsfeld, 352 F.3d 695 (2nd Cir. 2003), rev'd, 542 U.S. 426

(2004) (asserting, inter alia, that meaningful judicial review

requires petitioner's access to counsel).

10 Habeas Corpus Rights for Detainees Fact Sheet, available at

http://www_.abanet.org/poladv/priorities/enemy/2007apr_habcor

p_factsheet.pdf (last visited Feb. 3, 2008).

SUMMARY OF ARGUMENT

Habeas corpus, the power of the courts to review de-

tention by the Executive, has existed in some form for

over seven hundred years, and is no less critical today

than it was at the inception of our constitutional system.

It remains, in the context of military detentions of this

country’s citizens, a vital protection of the rule of law.

Without habeas corpus, such constitutional protections as

due process would be unenforceable and meaningless.

The habeas petitioners here are United States citizens

who allege that they have been detained as “enemy com-

batants” and “security internees” by United States mili-

tary authorities for over two years without due process.

Even though these citizens brought their habeas petitions

prior to any action by the Iraqi courts, the government

now seeks to turn them both over to Iraqi officials, one to

be tried before an Iraqi criminal court, and the other to be

executed pursuant to an Iraqi judgment.

Although there may be circumstances in which a citi-

zen may be detained as an enemy combatant or trans-

ferred to the custody of a foreign government, due process

must be provided to ensure that such detentions and

transfers are according to law and not arbitrary. There

can be no such inquiry without an opportunity for judicial

inquiry into the process actually used.

The government argues that its actions are immune

from judicial review because it is operating as part of a

“multinational force.” The ABA respectfully asserts that

this argument is inconsistent with this Court’s ruling in

Hamdi v. Rumsfeld that United States citizens have ha-

beas rights even when they are captured abroad and des-

ignated “enemy combatants.” See 542 U.S. 507, 533 (2004)

(plurality opinion). Operation as part of a multinational

force should not be permitted to defeat the United States

iittala linia

government’s responsibilities to its citizens. Unreviewable

military action is not consistent with American legal prin-

ciples.

ARGUMENT

I. MEANINGFUL REVIEW OF DETENTION IS

FUNDAMENTAL TO THE RULE OF LAW.

A. Habeas Corpus Is Deeply Rooted in the

Common Law and Our Constitutional Sys-

tem.

Habeas corpus, the principle that one should not be

imprisoned by the Executive without fair and impartial

judicial review to protect against arbitrary or unlawful

government detention, is no less critical today than it was

at the inception of our constitutional system. As the

Founders recognized, habeas corpus is one of the “essen-

tial principles of our Government.” Thomas Jefferson,

First Inaugural Address (Mar. 4, 1801), reprinted in In-

augural Addresses of the Presidents of the United States,

S. Doc. No. 101-10, at 16 (1989). Alexander Hamilton de-

scribed habeas corpus as “perhaps [a] greater securit[y]} to

liberty and republicanism than any [the Constitution]

contains.” The Federalist No. 84 (Alexander Hamilton).

The modern understanding of habeas corpus throws

its roots “deep into the genius of our common law.” Rasul

v. Bush, 542 U.S. 466, 473 (2004) (quoting Williams v.

Kaiser, 323 U.S. 471, 484 n. 2 (1945)). The writ predates

statute, and has existed in some form for over seven hun-

dred years. See Henry de Bracton, De Legibus Et Consue-

tudinibus Anglie: Vol. 4:367 (Thorne Ed.) (containing a

form for a writ of habeas corpus ad respondendum).

The importance of the writ has left its mark on Eng-

lish and American history. The refusal of King Charles I

to enforce the privilege of the writ was one of the causes

that eventually led to the English Civil War. See Petition

of Right, 3 Car. 1 c. 1 at § V. During the Protectorate fol-

lowing the English Civil War, prisoners were moved be-

tween jails or overseas to prevent service of habeas corpus

petitions. See William Duker, A Constitutional History of

Habeas Corpus 48-53 (1980). In 1667, Parliament im-

peached Edward Hyde, Earl of Clarendon, for such acts.

Duker, at 53 (quoting Proceedings in Parliament against

Edward Earl of Clarendon, Lord High Chancellor of Eng-

land, (1663-1667) 6 St. tr. 291).

After the Restoration, when Charles II authorized

transfers of English subjects to military garrisons over-

seas, Parliament responded with the Habeas Corpus Act

of 1679, sometimes referred to as the “second Magna

Carta” to prevent transfers of prisoners out of the juris-

diction of the habeas courts. See 31 Car. 2 c. 2, §§ x and

xii.

Particularly as applied to British subjects, there was

no question that the power of the writ of habeas corpus

extended overseas. In King v. Overton, 1 Sid. 387, 82 Eng.

Rep. 1173 (K.B. 1668), and King v. Salmon, 2 Keble 450,

84 Eng. Rep. 282 (K.B. 1669), the writ of habeas corpus

was held to run to the Island of Jersey, which was not

part of the Realm of England, but was historically part of

the Duchy of Normandy. Sir Matthew Hale, The History

of the Common Law of England, 121 (C. Gray Ed. 1971);

Charles Le Quesne, A Constitutional History of Jersey, 98

(1856). Sir Matthew Hale explained Overton and Salmon

on the basis that “the King may demand, and must have

an Account of the Cause of any of his Subjects’ Loss of

Liberty.” Hale, supra, at 187.

The founders of the United States were deeply aware

of the importance of preserving the power of the judiciary

to protect individual liberty. Having borne witness first

hand to the abuses that can follow when the judiciary is

rendered subordinate to executive power (see Declaration

of Independence), they saw fit to guarantee the right to

habeas corpus in the Suspension Clause of the Constitu-

tion. U.S. Const., Art. I § 9. The constitutional protection

of habeas corpus predates even the Due Process Clause of

the Fifth Amendment.

“There is no higher duty than to maintain [the writ of

habeas corpus] unimpaired.” Johnson v. Avery, 393 U.S.

483, 485 (1969). As this Court has recognized, “[cjourts

and their procedural safeguards are indispensable to our

system of government. They were set up by our founders

to protect the liberties they valued.” Duncan v. Kaha-

namoku, 327 U.S. 304, 322 (1946) (citing Ex parte Quirin,

317 U.S. 1, 19 (1942)). Clearly, “the writ of habeas corpus

is one of the pillars of our constitutional system.”!!

The importance of judicial review extends, perhaps

especially, to detentions by military authorities. It would

be “extremely dangerous to say, that because the prison-

ers were apprehended, not by a civil magistrate, but by

the military power, there could be given by law a right to

try the persons so seized in any place which the general

might select, and to which he might direct them to be car-

ried.” Ex parte Bollman, 8 U.S. (4 Cranch) 75, 136 (1807).

Indeed, “[a]t its historical core, the writ of habeas corpus

has served as a means of reviewing the legality of execu-

tive detention, and it is in that context that its protections

have been strongest.” JNS v. St. Cyr, 533 U.S. 289, 301

(2001). As the ABA’s Task Force on Enemy Combatants

concluded, “indefinite detention, denial of counsel, and

1! Habeas Corpus Rights for Detainees Fact Sheet, available

at http://www.abanet.org/poladv/priorities/enemy

/2007apr_habcorp_factsheet.pdf (last visited Feb. 3, 2008).

ili ; “ ee

overly secret proceedings could tear at the Bill of Rights,

the very fabric of our great democracy.”!”

B. Due Process Requires That Every Detainee

Be Informed of the Allegations Against Him

and Afforded a Meaningful Opportunity to

Challenge His Detention.

The United States citizens in this case brought their

habeas petitions to challenge their detention by United

States military forces operating as part of the Multi-

National Force — Iraq. They brought their habeas peti-

tions before the Iraqi courts were involved in any way,

and their habeas petitions do not raise any challenges

against Iraqi court procedures. Rather, these United

States citizens are being held solely as a result of a de-

termination by a panel of three American military officers

that they are “enemy combatants” and “security intern-

ees.

It is unclear what protections, if any, the prisoners

received or what standards the panels applied in approv-

ing the prisoners’ detentions. But it is undisputed that

the habeas petitioners were not represented by counsel.

They allege in their habeas petitions that they were not

afforded due process, and those allegations have yet to be

tested in court.

Due process must be provided to ensure that every

“citizen-detainee seeking to challenge his classification as

an enemy combatant .. . receive notice of the factual basis

for his classification, and a fair opportunity to rebut the

Government’s factual assertions before a neutral deci-

12 Revised Report 109 (Feb. 10, 2003), available at

http://www.abanet.org/leadership/recom mendations03/109.pdf

(last visited Feb. 3, 2008).

sionmaker.” Hamdi, 542 U.S. at 533. Without judicial re-

view to ensure that such process is actually provided, the

vitality of constitutional rights lies entirely within the

discretion of a single branch of government. That result is

fundamentally contrary to the rule of law.

The ABA does not take the position that a citizen may

never be detained as an enemy combatant or transferred

to the custody of a foreign government; however, the ABA

continues respectfully to assert that due process must be

provided to ensure that such detentions and transfers are

according to law and not arbitrary. See ABA Amicus

Brief, Hamdi v. Rumsfeld, No. 03-6696 (U.S. Feb. 23,

2004). There can be no such inquiry without an opportu-

nity for judicial inquiry into the process actually used.

To be sure, the Executive is entitled to some deference

with respect to actions taken pursuant to its constitu-

tional responsibilities in the conduct of foreign affairs and

as commander-in-chief of the Armed Forces. But such def-

erence has never extended so far as to authorize Execu-

tive detentions of United States citizens without any judi-

cial review. “While we accord the greatest respect and

consideration to the judgments of military authorities in

matters relating to the actual prosecution of a war, and

recognize that the scope of that discretion necessarily is

wide, it does not infringe on the core role of the military

for the courts to exercise their own time-honored and con-

stitutionally mandated role of reviewing and resolving

claims like those presented here.” Hamdi, 542 U.S. at

535. The judiciary must be empowered to honor its re-

sponsibilities “in time of war, as well as in time of peace,

to preserve unimpaired the constitutional safeguards of

civil liberty.” Quirin, 317 U.S. at 19. The Constitution is

this country’s greatest strength, not its weakness. See Ex

parte Milligan, 71 U.S. 2, 120-21 (1866).

Il. THE GOVERNMENT’S POSITION WOULD

UNDERMINE THE RULE OF LAW AND THE

INDEPENDENCE OF THE JUDICIARY.

A. No Citizen Should Be Detained Based Solely

upon Untested Allegations.

At this preliminary stage, the issue before this Court

is not whether the habeas petitioners may be turned over

to Iraqi authorities. Rather, the issue before this Court is

whether the petitioners’ habeas claims may be heard, and

whether the district court can protect its jurisdiction by

enjoining such a transfer while a habeas petition is pend-

ing.

Both petitioners raised serious claims in their habeas

petitions, each of which was filed before the Iraqi courts

had any involvement. Both petitioners claim that they are

United States citizens and that they have been seized and

detained as alleged “enemy combatants” and “security in-

ternees” for more than two years by United States mili-

tary forces without due process. They claim to be innocent

of the underlying allegations of enemy belligerency or

criminal activity. One claims that he will face torture if

turned over to the Iraqi government. The other was con-

demned to death after his habeas petition was filed. Nei-

ther the habeas petitioners nor the habeas respondents

have had the opportunity to test their assertions in court.

The ABA takes no position with respect to the merits

of the habeas petitioners’ claims, but asserts that no citi-

zen should be detained based solely upon untested allega-

tions. “Any process in which the Executive’s factual asser-

tions go wholly unchallenged or are simply presumed cor-

rect without any opportunity for the alleged combatant to

demonstrate otherwise falls constitutionally short.”

Hamdi, 542 U.S. at 537.

B. Participation in a “Multinational Force”

Should Not Defeat Jurisdiction over United

States Officers.

The government has taken the position that the fed-

eral courts have no jurisdiction to review detentions by

United States military officers acting as part of the Mul-

tinational Force — Iraq, and that, even if the courts have

such jurisdiction, the government can defeat it unilater-

ally by transferring these detainees to the custody of a

foreign government. The consequences of either of the

government’s positions would eviscerate the rule of law,

which requires that judicial review must be available to

prevent arbitrary or unlawful detention.

The writ of habeas corpus does not act upon the de-

tainee, but upon the custodian. This court has recognized

that a writ of habeas corpus may properly issue if the cus-

todian is within the jurisdiction of the court. See Rasul v.

Bush, 542 U.S. at 481; Braden v. 30th Judicial Circuit

Court of Ky., 410 U.S. 484, 495 (1973). United States milli-

tary members in the multinational force remain under the

“unified command” (see Brief for the Federal Parties at 2)

of United States government officials within the jurisdic-

tion of the district court. If the government’s position were

adopted, and its participation as a part of a multinational

force were deemed to immunize its actions from any judi-

cial review, even when applied to United States citizens,

such an argument would apply whether or not the de-

tainee had been criminally charged, and whether or not

the detainee had received any meaningful opportunity to

challenge his detention. Such a result would directly con-

travene Hamdi, which held that a United States citizen

detained by United States military authorities has the

right to due process. See Hamdi, 542 U.S. at 533.

The “multinational force” argument, further, could ar-

guably apply whenever the United States cooperates with

allies which, during the past century, has occurred in

nearly every prolonged military conflict in which it has

been involved. But cooperation with allies should not be

permitted to defeat the United States government’s re-

sponsibilities to its citizens. “Whatever power the United

States Constitution envisions for the Executive in its ex-

changes with other nations or with enemy organizations

in times of conflict, it most assuredly envisions a role for

all three branches when individual liberties are at stake.”

Hamdi, 542 U.S. at 536.

In asserting that participation in a multinational force

should not impair the jurisdiction of the federal courts

over United States officials, the ABA in no way means to

disparage the contributions of this country’s allies in the

United Nations or the efforts of the lraqi people in restor-

ing security and stability in Iraq. But the ABA knows,

and has seen in its work in promoting the rule of law

overseas, that a strong and independent court system in

the United States with the power to hold even the mili-

tary accountable to the Constitution can only promote

this country’s reputation abroad as a defender of liberty

and the rule of law. Unreviewable military action is not

consistent with American legal principles.

C. A Subsequent Judgment of an Iraqi Court

Should Not Affect the Jurisdiction of a

United States Court over a Prior Habeas Pe-

tition of a United States Citizen.

As noted earlier, the habeas petitions in these cases

were filed before, not after, any action by the Iraqi gov-

ernment or its courts. Although jurisdiction was not in-

voked to review the judgment of the Iraqi courts, the D.C.

Circuit panel in Munaf held that, in light of this Court’s

per curiam opinion in Hirota v. MacArthur, 338 U.S. 197

(1948), there is no jurisdiction because the prisoner was

subsequently convicted by an Iraqi court. However, the

panel also noted:

In holding that the district court lacks jurisdiction,

we do not mean to suggest that we find the logic of

Hirota especially clear or compelling, particularly

as applied to American citizens. In particular, Hi-

rota does not explain why, in cases such as this,

the fact of a criminal conviction in a non-U.S. court

is a fact of jurisdictional significance under the ha-

beas statute.

Munaf v. Geren, 482 F.3d 582, 584 (D.C. Cir. 2007). The

panel majority, relying on its reading of Hirota, left to this

Court “the prerogative of overruling its own decisions.” Jd.

at 585 (quoting Rodriguez de Quijas v. Shear-

son/American Express, Inc., 490 U.S. 477, 484 (1989)).

Further, the D.C. Circuit’s reading of the case was heavily

influenced by its own prior opinion in Flick v. Johnson,

174 F.2d 983 (D.C. Cir. 1949). See Omar v. Harvey, 479

F.3d 1, 7 (D.C. Cir. 2007).

The government’s assertion that there can be no ha-

beas jurisdiction when the United States military is oper-

ating as part of a multinational force is not supported by

the narrow language employed in Hirota, in which this

Court held only that it lacked the power to review judg-

ments against the petitioners under the circumstances of

that case. Hirota, 338 U.S. at 198. Nothing in Hirota sug-

gests that the Executive is free to detain a United States

citizen and is not amenable to judicial review simply be-

cause it acts in concert with foreign governments.

The United States has a special obligation under con-

stitutional law for the protection of its citizens. See Reid

v. Covert, 354 U.S. 1, 5 (1957). It is for this reason that

the Court has recognized that citizenship of the detainee

can be a head of habeas corpus jurisdiction, even where

the detention takes place within the territorial jurisdic-

tion of a foreign country. See id.; see also Johnson v. Eis-

entrager, 339 U.S. 763, 769 (1950) (“The years have not

destroyed or diminished the importance of citizenship nor

have they sapped the vitality of a citizen’s claims upon his

government for protection”). A rule exempting detentions

of citizens overseas from judicial review would create pre-

cisely the perverse incentive described by Justice

O’Connor in Hamdi:

Military authorities faced with the stark choice of

submitting to the full-blown criminal process or re-

leasing a suspected enemy combatant captured on

the battlefield will simply keep citizen-detainees

abroad. ... It is not at all clear why [presence out-

side the United States] should make a determina-

tive constitutional difference.

Hamdi, 542 U.S. at 524.

The government expresses concern that habeas corpus

jurisdiction would conflict with the Iraqi government’s

“exclusive jurisdiction” to punish offenses that occur

within its sovereign borders. As the ABA pointed out in

its amicus brief filed in Bowmediene, a distinction based

on whether detentions by the United States military oc-

curred within or outside of the United States would create

a situation “where individual rights are not judicially en-

forceable, thus undermining the most fundamental at-

tribute of the rule of law.” Brief Amicus Curiae of the

ABA, Boumediene v. Bush, No. 06-1195 (Aug. 24, 2007) at

10. The ABA therefore respectfully asserts that the dis-

trict court must have jurisdiction to review detentions of

United States citizens by its military, regardless of the

location of the detention.

CONCLUSION

The American Bar Association respectfully

requests that the judgment of the Court of Appeals in

Munaf v. Geren be reversed, and the judgment of the

Court of Appeals in Omar v. Harvey be affirmed.

Respectfully submitted,