Munaf v. Geren; Geren v. Omar II

Bill Long 6/18/08

SUMMARY OF JUNE 12, 2008 DECISION

This complex case has to do with the jurisidiction of American Courts over American citizens captured by the Multi-National Force (MNF) in Iraq since the American invasion of Iraq in 2003 and being held for trial in the Iraqi court system. The Supreme Court delivered a two-part decision in this case: (1) By a 9-0 margin, the Court decided that US Courts do have habeas corpus jurisdiction over American citizens held in circumstances so defined (where American soldiers are the de-facto captors and guards of the Americans), and (2) also unanimously, concluded that the American courts' habeas jurisdiction doesn't reach the claims made by the petitioners in this case--to prevent transfer of the American citizens to Iraqi custody and trial. This review will present some of the facts of the cases as well as the leading points of Chief Justice Roberts' opinion.

A Few Background Facts

This case concerns two individuals, one a dual Jordanian-American citizen and one a dual Iraqi-American citizen.

"Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are American citizens who voluntarily traveled to Iraq and allegedly committed crimes there. They were each captured by military forces operating as part of the MNF-I; given hearings before MNF-I Tribunals composed of American officers, who concluded that petitioners posed threats to Iraq's security; and placed in the custody of the U.S. military operating as part of the MNF-I. Family members filed next-friend habeas corpus petitions on behalf of both petitioners in the United States District Court for the District of Columbia.

In Omar's case, after the Department of Justice informed Omar that the MNF-I had decided to refer him to the Central Criminal Court of Iraq for criminal proceedings, his attorney sought and obtained a preliminary injunction from the District Court barring Omar's removal from United States or MNF-I custody. Affirming, the D.C. Circuit first upheld the District Court's exercise of habeas jurisdiction, finding that Hirota v. MacArthur, 338 U.S. 197, 69 S.Ct. 197, did not preclude review because Omar, unlike the habeas petitioners in Hirota, had yet to be convicted by a foreign tribunal.

Meanwhile, the District Court in Munaf's case dismissed his habeas petition for lack of jurisdiction. The court concluded that Hirota controlled and required that the petition be dismissed for lack of jurisdiction because the American forces holding Munaf were operating as part of an international force-the MNF-I. The D.C. Circuit agreed and affirmed. It distinguished its prior decision in Omar, which upheld jurisdiction over Omar's habeas petition, on the grounds that Munaf had been convicted by a foreign tribunal while Omar had not."

Legal Questions Before the Court

The Court had two questions to answer:

"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."

It answered the first in the affirmative. The Chief Justice reasoned as follows:

"The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. The Government's argument that the federal courts lack jurisdiction over the detainees' habeas petitions in such circumstances because the American forces holding Omar and Munaf operate as part of a multinational force is rejected. The habeas statute, 28 U.S.C. § 2241(c)(1), applies to persons held “in custody under or by color of the authority of the United States.” The disjunctive “or” in § 2241(c)(1) makes clear that actual Government custody suffices for jurisdiction, even if that custody could be viewed as “under ... color of” another authority, such as the MNF-I."

Even though the MNF is a joint-nation force, it is in fact an entity largely controlled by the United States, with guards who report to the US commander, who himself reports to the political leaders in Washington DC. Thus, the habeas statute gives the two defendants protection.

Yet, all is not good news for them. The Court went on to hold that Federal district courts may not exercise their habeas jurisdiction to enjoin the US from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution. Here is how the Court argued:

"The District Court abused its discretion in granting Omar a preliminary injunction, which the D.C. Circuit interpreted as prohibiting the Government from (1) transferring Omar to Iraqi custody, (2) sharing with the Iraqi Government details concerning any decision to release him, and (3) presenting him to the Iraqi courts for investigation and prosecution, without even considering the merits of the habeas petition. A preliminary injunction is an “extraordinary and drastic remedy.” It should never be awarded as of right, Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834, and requires a demonstration of, inter alia, “a likelihood of success on the merits,” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017. But neither the District Court nor the D.C. Circuit considered the likelihood of success as to the merits of Omar's habeas petition. Instead, the lower courts concluded that the “jurisdictional issues” implicated by Omar's petition presented difficult and substantial questions. A difficult question as to jurisdiction is, of course, no reason to grant a preliminary injunction."

The Court thus concluded that the lower court had improperly used the difficulty of the jurisdictional issues as a "cover" for granting a preliminary injunction. But, a preliminary injunction only was right when there was a likelihood of success on the merits--which wasn't considered in this case.

Instead of remanding the case, however, the Court decided that this was a rare instance in which it was proper for it to consider the merits:

"Petitioners argue that they are entitled to habeas relief because they have a legally enforceable right not to be transferred to Iraqi authorities for criminal proceedings and because they are innocent civilians unlawfully detained by the Government. With respect to the transfer claim, they request an injunction prohibiting the Government from transferring them to Iraqi custody. With respect to the unlawful detention claim, they seek release but only to the extent it would not result in unlawful transfer to Iraqi custody. Because both requests would interfere with Iraq's sovereign right to “punish offenses against its laws committed within its borders,” Wilson v. Girard, 354 U.S. 524, 529, 77 S.Ct. 1409, 1 L.Ed.2d 1544, petitioners' claims do not state grounds upon which habeas relief may be granted. Their habeas petitions should have been promptly dismissed and no injunction should have been entered."

The reasons?

"The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF-I custody, Iraq would be free to arrest and prosecute them under Iraqi law. Further, Munaf is the subject of ongoing Iraqi criminal proceedings and Omar would be but for the present injunction. Given these facts, Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution, see Neely v. Henkel, 180 U.S. 109, 123, 21 S.Ct. 302, 45 L.Ed. 448. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136, 3 L.Ed. 287."

But doesn't anyone care that if these two men are turned over to Iraqi forces, they might be tortured or killed? The Court dismissed these issues quickly:

"Petitioners' allegations that their transfer to Iraqi custody is likely to result in torture are a matter of serious concern but those allegations generally must be addressed by the political branches, not the judiciary. The recognition that it is for the democratically elected branches to assess practices in foreign countries and to determine national policy in light of those assessments is nothing new. As Chief Justice Marshall explained in the Schooner Exchange, “exemptions from territorial jurisdiction ... must be derived from the consent of the sovereign of the territory” and are “rather questions of policy than of law, ... they are for diplomatic, rather than legal discussion.” 7 Cranch, at 143, 146, 3 L.Ed. 287. In the present cases, the Government explains that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result and that the State Department has determined that the Justice Ministry-the department which has authority over Munaf and Omar-as well as its prison and detention facilities, have generally met internationally accepted standards for basic prisoner needs. The judiciary is not suited to second-guess such determinations."

Ultimately, then, the Court felt that it was in no position to determine precisely how the prisoners might be treated if released to the Iraqi forces, but that since there was evidence that the Iraqis "have generally met internationally accepted standards for basic prisoner needs" (since when are the conservatives on the US Supreme Court satisfied with "international" standards?), turning them over was not a legal problem over which the US Courts had jurisdiction.

Thus, these two men's case is at an end, even though the US Courts do have habeas jurisdiction over their cases.

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