Munaf v. Geren; Geren v. Omar

These two cases have been consolidated because they present an identical (or near identical) legal issue, even though two panels of the DC Circuit Court of Appeals reached different conclusions as to the result of the case. The issue has to do with whether the United States District Court has jurisdiction to issue a writ of habeas corpus on behalf of a US Citizen detained by the Multi-National Force-Iraq ("MNF-I") in Iraq. It might be helpful to tell the facts of each case and then show how two different panels of the DC Circuit came to different results.

Omar's and Munaf's Cases

1. Mohammad Munaf, an American citizen, traveled to Iraq in 2005. In Oct. 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 US military personnel serving as part of the MNF-I. Munaf sought a writ of habeas corpus in the US District Court for the District of Columbia. The court held that it lacked jurisdiction and dimissed the petition. Case is at 482 F3d 582 (DC Cir 2007).

2. In October 2004, US military forces operating in Iraq arrested Shawqi Ahmad Omar, a holder of dual (American-Jordanian) citizenship, at his Baghdad home. According to Omar, after the overthrow of the Saddam Hussein government he went to Iraq to aid in the rebuiding effort. The US government paints a completely different picture of his presence in Iraq. They concluded that Omar was part of Abu Musab al-Zarqawi's terrorist network both in and outside of Iraq. The government alleges that four Jordanian foreign fighters and an Iraqi insurgent were captured along with Omar, and that weapons and improvised explosive device-making materials were found in his home.

After his Nov. 2004 arest, an MNF-I panel of three American military officers conducted a hearing to resolve his status. Omar was declared to be a "security internee under the law of war" and "an enemy combatant" in the war on terrorism. In August 2005 the MNF-I decided to refer Omar to the CCCI of Iraq for trial. However, before this could be done, on Dec. 12, 2005, Omar's wife Sandra filed a petition for a writ of habeas corpus as Omar's next friend. The petition asserted that Omar's detention by the US military violates numerous constitutional provisions, among them the right to due process guaranteed by the Fifth Amendment. The reason for applying for the writ of habeas corpus is to bring Omar before a court of competent jurisdiction in the United States. Case is at 479 F3d 1 (DC Cir 2007).

One more note. The Iraqi Court (the CCCI) has two "arms": an investigative and trial arm. It is staffed by Iraqis and carries out its decisions based on Iraqi law. However, because of the instability in the country, the MNF-I exercises control over defendants that have been turned over to the CCCI until sentence is about to be executed. Thus, both Munaf and Omar remain in the custody of the MNF-I.

The Question at Issue and The Decisions Below

In order to understand the decisions reached by the courts below, it might be helpful to jump ahead to the questions presented in the petitions for cert. They are two:

"1. Whether the United States courts have jurisdiction to entertain a habeas corpus petition filed on behalf of an individual such as respondent challenging his detention by the multinational force.

2. Whether, if such jurisdiction exists, the district court had the power to enjoin the multinational force from releasing respondent to Iraqi custody or allowing respondent to be tried before the Iraqi courts."

These questions help us frame the issues before the circuit court panels. The issue comes down to a very simple one--to what extent the panels concluded that a 60 year-old Supreme Court precedent nine sentences in length controls the facts of these cases. That case, Hirota v. MacArthur (338 US 197 (1948)) concluded that Japanese officials could not invoke habeas corpus to challenge their conviction by a multinational military tribunal in the wake of WWII rebuilding efforts in Japan. Here is the Hirota decision, in its entirety:

"The petitioners, all residents and citizens of Japan, are being held in custody pursuant to the judgment of a military tribunal in Japan. Two of the petitioners have been sentenced to death, the others to terms of imprisonment. They filed motions in this Court for leave to file petitions for habeas corpus. We set all the motions for hearing on the question of our power to grant the relief prayed and that issue has now been fully presented and argued.

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.

Under 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 and for this reason the motions for leave to file petitions for writs of habeas corpus are denied."

The Omar court in the DC Circuit concluded that though there were similarities between Omar and the Japanese officers, the dissimilarities were greater. The chief ones were that Omar is an American citizen and that he has not been tried by a court in Iraq. In addition, the Omar court in the US (DC Circuit) said that the Hirota decision was so short as to give absolutely no real legal guidance in the current situation. It was completely bound by the circumstances of the times and facts of that case.

In contrast the Munaf panel decided that the Hirota case was directly controlling, and it forbade them from exercising habeas jurisdiction over Munaf's petition. Crucial for this panel of the DC Circuit was the question framed in a case that came after Hirota but which taught the same principle (Flick v. Johnson, 174 F2d 983 (DC Cir. 1949)0. This principle can best be described as an answer to the following question: "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..." The other panel of the DC Circuit, concluding that the court sentencing Munaf wasn't a court of the US, decided that the US courts had no jurisdiction over the case.

Before the Supreme Court

There you have it, the two approaches to whether there is jurisdiction for an American court to issue a writ of habeas corpus for American citizens being held (and tried) by non-US judicial processes overseas. I think the decision in this case will be a two-part decision. On the one hand, I think the Court will conclude that the US courts have jurisdiction to issue a writ of habeas corpus. They will distinguish these cases from the earlier ones because the petitioners here are both American citizens, while in Hirota and Flick the petitioners were Japanese and German, respectively. Courts have a thing in general about permitting US citizens access to US courts.

But then, on the second question, I think the Court will be much more divided. Why? Certainly not on "legal" grounds. I think that everyone knows that if American citizens accused of terrorist activities are turned over to Iraqi courts, there is a good chance that their fate will probably be death. Do we want to do this--to let other countries sentence our citizens to death? There are enough Justices on this Court who probably are so offended by the allegations against these men that they might not have much sympathy for them--let them be turned over to the Iraqi court, then. But I think a strong contingent of Justices will not permit this. I see 5-4 written all over this case, though I think that jurisdiction will probably be found by about 7 or 8 of the Justices.

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Munaf v. Geren and Geren v. Omar (Consolidated Cases)

Munaf v. Geren and Geren v. Omar
(Consolidated Cases)