Munaf v. Geren
Encyclopedia
Munaf v. Geren, 553 U.S. 674 (2008), is a United States Supreme Court case where the court unanimously concluded that the habeas corpus
statute, (c)(1), extends to U.S. citizens held overseas by American forces subject to an American chain of command, even if acting as part of a multinational coalition, but also found that habeas corpus provided the petitioners with no relief holding that "Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them."
The case dealt specifically with the appeals from Mohammad Munaf
and Shawqi Ahmad Omar, both naturalized citizens of the United States
held by MNF-I, specifically American
, forces in Iraq. In it arguments, the government relied heavily upon Hirota v. MacArthur
(1948), a case in which the Supreme Court found it lacked original jurisdiction
over citizens of Japan
being held by the Allied Powers
for the Tokyo War Crimes Tribunal
because "the tribunal sentencing [the petitioners] [was] not a tribunal of the United States."
, the American Bar Association
, the Committee to Protect Journalists
, the International Federation of Journalists
, the PEN American Center
, and the Reporters Committee for Freedom of the Press
filed amici curiae on behalf of Munaf and Omar.
and occupied Iraq
. Under United Nations Security Council
Resolution 1546
(and subsequent resolutions 1637, 1723, and 1790), the Multi-National Force – Iraq was given authority to "take all necessary measures to contribute to the maintenance of security and stability" and actively took part in security operations in Iraq.
In March
of 2005, Munaf traveled to Iraq alongside three Romanian journalists to act as their guide and translator. Shortly thereafter, the Romanian journalists were taken hostage and held for approximately 55 days; according to Munaf, he was also held as a hostage. On May 22, 2005, the MNF-I and Iraqi security forces freed the hostages, but Munaf was detained in MNF-I custody due to his suspected involvement in the kidnapping plan. Munaf and his five co-conspirators were given a trial by the Central Criminal Court of Iraq
(CCCI) in Baghdad, and a panel of three trial judges at CCCI found Munaf and his co-conspirators guilty and sentenced all six to death. In addition, Munaf was convicted by a Romanian court in 2008 of complicity in the kidnapping.
On October 13, Munaf's lawyers filed a habeas corpus
petition in the U.S. District Court for the District of Columbia
seeking his release from then Secretary of the Army
Francis J. Harvey
's custody and to block the transfer of Munaf to Iraqi custody. On October 19, Judge Royce Lamberth dismissed the petition and denied the motions for the temporary restraining order sua sponte
. In the memorandum opinion
dismissing the petition, the judge stated that the court lacked jurisdiction
because Munaf is being held in MNF-I custody, not US custody, thus failing the requirements for habeas corpus relief. Munaf's lawyers appealed to the U.S. Court of Appeals
, and on October 27, The D.C. Circuit also denied Munaf's motion for injunctive relief, but ordered the US military to refrain from releasing Munaf into Iraqi custody pending an appeal to the U.S. Supreme Court. Munaf's attorneys' filed a petition to the Supreme Court on November 6, 2006, and on November 13, 2006 the court refused certiorari
. Munaf's attorneys attempted to have the case reconsidered by the D.C. Circuit en banc
, but on April 6 the appeal was denied and the district court's decision upheld.
In late October 2004, United States military forces operating in Iraq arrested appellee Shawqi Ahmad Omar, a dual American/Jordan
ian citizen, at his Baghdad
home. Born in Kuwait
, Omar became a naturalized American citizen following his marriage to the former Sandra Kay Sulzle. According to Omar, after the overthrow of the Saddam Hussein
government, he traveled to Iraq seeking reconstruction-related work and would have left by November 2004 but for his arrest and detention. The government paints a very different picture of Omar's presence in Iraq. According to the government, U.S. military forces, operating in Iraq pursuant to U.N. Security Council Resolutions 1546 (2003) and 1637 (2004) as part of the Multi-National Force-Iraq (MNF-I), captured Omar during a raid on associates of Abu Musab al-Zarqawi
. The government concluded that Omar was part of Zarqawi's network and that he facilitated terrorist activities both in and outside of Iraq. 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 Omar's home.
Following Omar's arrest, an MNF-I panel of three American military officers conducted a hearing to resolve his status. According to the government, the process employed by the panel exceeded the requirements of Article 5 of the Third Geneva Convention
. The record, however, reveals little about the panel's operation. We know only that the panel permitted Omar to see the evidence against him, to make a statement, and to call "immediately available" witnesses. After the hearing, the panel declared Omar to be a "security internee under the law of war" and an "`enemy combatant' in the war on terrorism." The panel also found that Omar was not a prisoner of war for purposes of the Third Geneva Convention. Since the panel's decision, American MNF-I officials have held Omar at various detention facilities in Iraq. According to Omar, the military has transferred him between Camp Cropper
, the Abu Ghraib prison
, and Camp Bucca
. Omar has been in custody for over six years.
In August 2005, the MNF-I decided to refer Omar to the Central Criminal Court of Iraq (CCCI) for trial. The record indicates neither who made this decision nor what procedures were followed. The CCCI, a Baghdad-based Iraqi court, has national jurisdiction over an array of criminal offenses, including terrorism. According to the government, during the CCCI investigation and trial phases, the MNF-I maintains physical custody of detainees like Omar, turning them over to the Iraqi Ministry of Justice only after conviction.
On December 12, 2005, Omar's wife, Sandra, and son, Ahmed, filed a petition for a writ of habeas corpus as Omar's next friends. Brought in the United States District Court for the District of Columbia, the petition named as respondents Francis J. Harvey
, Secretary of the Army; Major General
William H. Brandenburg
, then-Deputy Commanding General of Detainee Operations and Commanding General of Task Force 134, MNF-I; and Lieutenant Colonel
Timothy Houser of the 105th Military Police Battalion, commanding officer at Camp Bucca. The petition claimed that Omar's detention by the United States military violates numerous constitutional provisions, chief among them the right to due process guaranteed by the Fifth Amendment
. The petition asked the district court to "[i]ssue a Writ of Habeas Corpus requiring Respondents to release Shawqi Omar from detention, and/or requiring Respondents to bring Shawqi Ahmad Omar before a court of competent jurisdiction in the United States to show just cause for his continued detention." Also alleging that "the United States military may turn Mr. Omar over to the custody of Iraqi authorities in an effort to evade the strictures of United States law," the petition asked the district court to "[e]njoin Respondents from transferring Mr. Omar to the authority of any other government, sovereign, country, or agency until [the district court] has an opportunity to consider and decide the merits of this Petition."
Approximately two months after filing the petition, Omar's attorney received an e-mail from the Department of Justice informing her of the MNF-I's earlier decision to refer Omar to the CCCI. Believing that CCCI proceedings could interrupt American custody of Omar, thereby stripping the district court of jurisdiction, that transfer would amount to an illegal extradition, and that Omar would likely face torture by Iraqi authorities, the attorney sought and received an ex parte temporary restraining order requiring that Omar "not be removed from United States custody."
In a memorandum filed shortly after entry of the TRO, the government challenged the district court's jurisdiction to entertain the petition. The government relied principally on Hirota v. MacArthur, in which the Supreme Court held that World War II Japanese officials could not invoke habeas to challenge their conviction by a multinational military tribunal. The government also argued that the district court had no authority to issue injunctive relief because doing so would "inject [the court] into an exclusive Executive function" and because adjudication of Omar's potential referral to the CCCI "raises non-justiciable political questions."
Following briefing, the district court converted the TRO into a preliminary injunction ordering that "the respondents . . . and any persons acting in concert or participation with them, or having actual or implicit knowledge of this Order . . . shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court's memorandum opinion." In the accompanying memorandum opinion, the court explained that the jurisdictional issues in the case presented questions "so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberative investigation." Fearing imminent referral to the CCCI would forever preclude a more deliberative investigation of the weighty jurisdictional questions, the court issued the injunction to freeze the status quo. In doing so, the court credited Omar's contention that transfer could irreparably deprive him of this investigation by "undo[ing the] court's jurisdiction." This, the court concluded, "would abuse the process now put in place for the purpose of adjudicating matters on their merits."
The government appealed, arguing (as it did in the district court) that Hirota controlled and that Omar's challenge presented non-justiciable political questions. The government also pointed out that even if the district court did have jurisdiction, its injunction was improper because, by prohibiting Omar's removal from American or MNF-I custody, it barred the government from providing Omar "all of the relief to which he is entitled through a writ of habeas corpus." In practice, by preventing his transfer to Iraqi judicial custody to stand trial, the petition on Omar's behalf has prolonged his detention and prevented him from having the opportunity to have his case heard on its merits in Iraqi court.
Habeas corpus in the United States
Habeas corpus , Latin for "you [shall] have the body," is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment...
statute, (c)(1), extends to U.S. citizens held overseas by American forces subject to an American chain of command, even if acting as part of a multinational coalition, but also found that habeas corpus provided the petitioners with no relief holding that "Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them."
The case dealt specifically with the appeals from Mohammad Munaf
Mohammad Munaf
Mohammad Munaf is a former Pakistani cricketer who played in four Tests from 1959 to 1962....
and Shawqi Ahmad Omar, both naturalized citizens of the United States
United States nationality law
Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
held by MNF-I, specifically American
United States armed forces
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...
, forces in Iraq. In it arguments, the government relied heavily upon Hirota v. MacArthur
Hirota v. MacArthur
Hirota v. MacArthur, 338 U.S. 197 , was a decision by the Supreme Court of the United States, which held that “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 [by the International Military...
(1948), a case in which the Supreme Court found it lacked original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
over citizens of Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
being held by the Allied Powers
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
for the Tokyo War Crimes Tribunal
International Military Tribunal for the Far East
The International Military Tribunal for the Far East , also known as the Tokyo Trials, the Tokyo War Crimes Tribunal, or simply the Tribunal, was convened on April 29, 1946, to try the leaders of the Empire of Japan for three types of crimes: "Class A" crimes were reserved for those who...
because "the tribunal sentencing [the petitioners] [was] not a tribunal of the United States."
History
This appeal deals with the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394). On December 7, 2007, the U.S. Supreme Court granted certiorari, and oral arguments were heard on March 25. Several organizations such as the Associated PressAssociated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
, the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
, the Committee to Protect Journalists
Committee to Protect Journalists
The Committee to Protect Journalists is an independent nonprofit organisation based in New York City that promotes press freedom and defends the rights of journalists.-History:A group of U.S...
, the International Federation of Journalists
International Federation of Journalists
International Federation of Journalists, IFJ, is a global union federation of journalists' trade unions—the largest in the world. The organization aims to protect and strengthen the rights and freedoms of journalists...
, the PEN American Center
PEN American Center
PEN American Center , founded in 1922 and based in New York City, works to advance literature, to defend free expression, and to foster international literary fellowship. The Center has a membership of 3,300 writers, editors, and translators...
, and the Reporters Committee for Freedom of the Press
Reporters Committee for Freedom of the Press
The Reporters Committee for Freedom of the Press is an American nonprofit organization, founded in 1970, that provides free legal assistance to and on behalf of journalists. A number of prominent journalists presently sit on the organization's steering committee, including Dan Rather, and Judy...
filed amici curiae on behalf of Munaf and Omar.
Munaf v. Harvey
In 2003, a coalition of American and foreign forces invaded2003 invasion of Iraq
The 2003 invasion of Iraq , was the start of the conflict known as the Iraq War, or Operation Iraqi Freedom, in which a combined force of troops from the United States, the United Kingdom, Australia and Poland invaded Iraq and toppled the regime of Saddam Hussein in 21 days of major combat operations...
and occupied Iraq
Iraq
Iraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
. Under United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
Resolution 1546
United Nations Security Council Resolution 1546
United Nations Security Council Resolution 1546, adopted unanimously on June 8, 2004, after reaffirming previous resolutions on Iraq, the Council endorsed the formation of the Iraqi Interim Government, welcomed the end of the occupation and determined the status of the multinational force and its...
(and subsequent resolutions 1637, 1723, and 1790), the Multi-National Force – Iraq was given authority to "take all necessary measures to contribute to the maintenance of security and stability" and actively took part in security operations in Iraq.
In March
March 2005
'March 2005': ← – January 2005 – February 2005 – March – April 2005 – May 2005 – June 2005 – July 2005 – August 2005 – September 2005 – October 2005 – November 2005 – December 2005 – →...
of 2005, Munaf traveled to Iraq alongside three Romanian journalists to act as their guide and translator. Shortly thereafter, the Romanian journalists were taken hostage and held for approximately 55 days; according to Munaf, he was also held as a hostage. On May 22, 2005, the MNF-I and Iraqi security forces freed the hostages, but Munaf was detained in MNF-I custody due to his suspected involvement in the kidnapping plan. Munaf and his five co-conspirators were given a trial by the Central Criminal Court of Iraq
Central Criminal Court of Iraq
The Central Criminal Court of Iraq, or CCCI, is a criminal court of Iraq. The CCCI is based on an inquisitorial system and consists of two chambers: an investigative court and a criminal court...
(CCCI) in Baghdad, and a panel of three trial judges at CCCI found Munaf and his co-conspirators guilty and sentenced all six to death. In addition, Munaf was convicted by a Romanian court in 2008 of complicity in the kidnapping.
On October 13, Munaf's lawyers filed a habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
petition in the U.S. District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
seeking his release from then Secretary of the Army
United States Secretary of the Army
The Secretary of the Army is a civilian official within the Department of Defense of the United States of America with statutory responsibility for all matters relating to the United States Army: manpower, personnel, reserve affairs, installations, environmental issues, weapons systems and...
Francis J. Harvey
Francis J. Harvey
Francis Joseph Harvey served as the 19th Secretary of the United States Army from November 19, 2004 to March 9, 2007.-Education and family:Harvey was born and raised in Latrobe, Pennsylvania...
's custody and to block the transfer of Munaf to Iraqi custody. On October 19, Judge Royce Lamberth dismissed the petition and denied the motions for the temporary restraining order sua sponte
Sua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
. In the memorandum opinion
Memorandum opinion
A memorandum opinion or memorandum decision is a judicial opinion that does not create precedent, persuasive or mandatory in some jurisdictions. A memorandum is often brief and written only to announce judgment in a particular case...
dismissing the petition, the judge stated that the court lacked jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
because Munaf is being held in MNF-I custody, not US custody, thus failing the requirements for habeas corpus relief. Munaf's lawyers appealed to the U.S. Court of Appeals
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
, and on October 27, The D.C. Circuit also denied Munaf's motion for injunctive relief, but ordered the US military to refrain from releasing Munaf into Iraqi custody pending an appeal to the U.S. Supreme Court. Munaf's attorneys' filed a petition to the Supreme Court on November 6, 2006, and on November 13, 2006 the court refused certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. Munaf's attorneys attempted to have the case reconsidered by the D.C. Circuit en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
, but on April 6 the appeal was denied and the district court's decision upheld.
Omar v. Harvey
Omar v. Harvey deals with a petition for a writ of habeas corpus filed on behalf of Shawqi Ahmad Omar, an American citizen, captured and detained in Iraq by United States military forces operating as part of the Multi-National Force-Iraq. Omar has been held under the control of United States forces for over two years, allegedly without legal process and with no meaningful access to counsel. When the district court learned of Omar's imminent transfer to Iraqi authorities for trial on terrorism charges, it issued a preliminary injunction barring transfer in order to preserve its jurisdiction to entertain the habeas petition.In late October 2004, United States military forces operating in Iraq arrested appellee Shawqi Ahmad Omar, a dual American/Jordan
Jordan
Jordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
ian citizen, at his Baghdad
Baghdad
Baghdad is the capital of Iraq, as well as the coterminous Baghdad Governorate. The population of Baghdad in 2011 is approximately 7,216,040...
home. Born in Kuwait
Kuwait
The State of Kuwait is a sovereign Arab state situated in the north-east of the Arabian Peninsula in Western Asia. It is bordered by Saudi Arabia to the south at Khafji, and Iraq to the north at Basra. It lies on the north-western shore of the Persian Gulf. The name Kuwait is derived from the...
, Omar became a naturalized American citizen following his marriage to the former Sandra Kay Sulzle. According to Omar, after the overthrow of the Saddam Hussein
Saddam Hussein
Saddam Hussein Abd al-Majid al-Tikriti was the fifth President of Iraq, serving in this capacity from 16 July 1979 until 9 April 2003...
government, he traveled to Iraq seeking reconstruction-related work and would have left by November 2004 but for his arrest and detention. The government paints a very different picture of Omar's presence in Iraq. According to the government, U.S. military forces, operating in Iraq pursuant to U.N. Security Council Resolutions 1546 (2003) and 1637 (2004) as part of the Multi-National Force-Iraq (MNF-I), captured Omar during a raid on associates of Abu Musab al-Zarqawi
Abu Musab al-Zarqawi
Abu Musab al-Zarqawi ; October 30, 1966 – June 7, 2006), born Ahmad Fadeel al-Nazal al-Khalayleh was a Jordanian militant Islamist who ran a paramilitary training camp in Afghanistan...
. The government concluded that Omar was part of Zarqawi's network and that he facilitated terrorist activities both in and outside of Iraq. 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 Omar's home.
Following Omar's arrest, an MNF-I panel of three American military officers conducted a hearing to resolve his status. According to the government, the process employed by the panel exceeded the requirements of Article 5 of the Third Geneva Convention
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
. The record, however, reveals little about the panel's operation. We know only that the panel permitted Omar to see the evidence against him, to make a statement, and to call "immediately available" witnesses. After the hearing, the panel declared Omar to be a "security internee under the law of war" and an "`enemy combatant' in the war on terrorism." The panel also found that Omar was not a prisoner of war for purposes of the Third Geneva Convention. Since the panel's decision, American MNF-I officials have held Omar at various detention facilities in Iraq. According to Omar, the military has transferred him between Camp Cropper
Camp Cropper
Camp Cropper is a holding facility for security detainees operated by the United States Army near Baghdad International Airport in Iraq. The facility was initially operated as a high-value detention site , but has since been expanded increasing its capacity from 163 to 2,000 detainees...
, the Abu Ghraib prison
Abu Ghraib prison
The Baghdad Central Prison, formerly known as Abu Ghraib prison is in Abu Ghraib, an Iraqi city 32 km west of Baghdad. It was built by British contractors in the 1950s....
, and Camp Bucca
Camp Bucca
Camp Bucca was a detention facility maintained by the United States military in the vicinity of Umm Qasr, Iraq. As of June 2011, a group of entrepreneurial Iraqis and Americans are re-building Camp Bucca as Basra Gateway, a logistics city and environmentally-friendly industrial hub to lead the new...
. Omar has been in custody for over six years.
In August 2005, the MNF-I decided to refer Omar to the Central Criminal Court of Iraq (CCCI) for trial. The record indicates neither who made this decision nor what procedures were followed. The CCCI, a Baghdad-based Iraqi court, has national jurisdiction over an array of criminal offenses, including terrorism. According to the government, during the CCCI investigation and trial phases, the MNF-I maintains physical custody of detainees like Omar, turning them over to the Iraqi Ministry of Justice only after conviction.
On December 12, 2005, Omar's wife, Sandra, and son, Ahmed, filed a petition for a writ of habeas corpus as Omar's next friends. Brought in the United States District Court for the District of Columbia, the petition named as respondents Francis J. Harvey
Francis J. Harvey
Francis Joseph Harvey served as the 19th Secretary of the United States Army from November 19, 2004 to March 9, 2007.-Education and family:Harvey was born and raised in Latrobe, Pennsylvania...
, Secretary of the Army; Major General
Major General
Major general or major-general is a military rank used in many countries. It is derived from the older rank of sergeant major general. A major general is a high-ranking officer, normally subordinate to the rank of lieutenant general and senior to the ranks of brigadier and brigadier general...
William H. Brandenburg
William H. Brandenburg
William H. Brandenburg is a retired Major General in the United States Army. He last served as Deputy Commanding General, U.S. Army, Pacific, August 8, 2003. Prior to his last assignment, he was Deputy Commanding General for Training and Readiness, I Corps and Fort Lewis...
, then-Deputy Commanding General of Detainee Operations and Commanding General of Task Force 134, MNF-I; and Lieutenant Colonel
Lieutenant colonel
Lieutenant colonel is a rank of commissioned officer in the armies and most marine forces and some air forces of the world, typically ranking above a major and below a colonel. The rank of lieutenant colonel is often shortened to simply "colonel" in conversation and in unofficial correspondence...
Timothy Houser of the 105th Military Police Battalion, commanding officer at Camp Bucca. The petition claimed that Omar's detention by the United States military violates numerous constitutional provisions, chief among them the right to due process guaranteed by the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. The petition asked the district court to "[i]ssue a Writ of Habeas Corpus requiring Respondents to release Shawqi Omar from detention, and/or requiring Respondents to bring Shawqi Ahmad Omar before a court of competent jurisdiction in the United States to show just cause for his continued detention." Also alleging that "the United States military may turn Mr. Omar over to the custody of Iraqi authorities in an effort to evade the strictures of United States law," the petition asked the district court to "[e]njoin Respondents from transferring Mr. Omar to the authority of any other government, sovereign, country, or agency until [the district court] has an opportunity to consider and decide the merits of this Petition."
Approximately two months after filing the petition, Omar's attorney received an e-mail from the Department of Justice informing her of the MNF-I's earlier decision to refer Omar to the CCCI. Believing that CCCI proceedings could interrupt American custody of Omar, thereby stripping the district court of jurisdiction, that transfer would amount to an illegal extradition, and that Omar would likely face torture by Iraqi authorities, the attorney sought and received an ex parte temporary restraining order requiring that Omar "not be removed from United States custody."
In a memorandum filed shortly after entry of the TRO, the government challenged the district court's jurisdiction to entertain the petition. The government relied principally on Hirota v. MacArthur, in which the Supreme Court held that World War II Japanese officials could not invoke habeas to challenge their conviction by a multinational military tribunal. The government also argued that the district court had no authority to issue injunctive relief because doing so would "inject [the court] into an exclusive Executive function" and because adjudication of Omar's potential referral to the CCCI "raises non-justiciable political questions."
Following briefing, the district court converted the TRO into a preliminary injunction ordering that "the respondents . . . and any persons acting in concert or participation with them, or having actual or implicit knowledge of this Order . . . shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court's memorandum opinion." In the accompanying memorandum opinion, the court explained that the jurisdictional issues in the case presented questions "so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberative investigation." Fearing imminent referral to the CCCI would forever preclude a more deliberative investigation of the weighty jurisdictional questions, the court issued the injunction to freeze the status quo. In doing so, the court credited Omar's contention that transfer could irreparably deprive him of this investigation by "undo[ing the] court's jurisdiction." This, the court concluded, "would abuse the process now put in place for the purpose of adjudicating matters on their merits."
The government appealed, arguing (as it did in the district court) that Hirota controlled and that Omar's challenge presented non-justiciable political questions. The government also pointed out that even if the district court did have jurisdiction, its injunction was improper because, by prohibiting Omar's removal from American or MNF-I custody, it barred the government from providing Omar "all of the relief to which he is entitled through a writ of habeas corpus." In practice, by preventing his transfer to Iraqi judicial custody to stand trial, the petition on Omar's behalf has prolonged his detention and prevented him from having the opportunity to have his case heard on its merits in Iraqi court.
See also
- List of United States Supreme Court cases, volume 553
- Mohammad MunafMohammad MunafMohammad Munaf is a former Pakistani cricketer who played in four Tests from 1959 to 1962....
- Hirota v. MacArthurHirota v. MacArthurHirota v. MacArthur, 338 U.S. 197 , was a decision by the Supreme Court of the United States, which held that “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 [by the International Military...
, - Rasul v. BushRasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
, - Hamdi v. RumsfeldHamdi v. RumsfeldHamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
,
External links
- [ Argument transcript on the U.S. Supreme Court Web site]