Commentary: Further Thoughts on Munaf/Omar Oral Argument

Wednesday, March 26th, 2008 12:16 pm | Eliza Presson | Print This Post

Kevin had this to say about yesterday’s argument in the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394).

I wanted to add a few additional thoughts about the Munaf/Omar argument yesterday, specifically with respect to the jurisdictional question. As Lyle notes in his post, counsel for the detainees allowed himself to be whipsawed a bit by some of the Justices, but that reflects in part the great difficulty of the case – all the Justices seem to recognize that important lines have to be drawn in this case, different Justices seemed to indicate very different views about where those lines should be drawn (even among Justices whom one might ordinarily assume share the same basic outlook), and the text of the relevant statute isn’t very helpful in making the kinds of distinctions the Justices seem to feel must be drawn to balance the historic liberty-protecting office of the writ with the important interests in allowing the executive great leeway in a time and place of war.

To briefly reiterate, the detainees in this case are American citizens captured in Iraq and charged with having committed criminal acts while in that country. Both are being held by American troops operating as part of the Multinational Force in Iraq. Omar is being held pending trial in an Iraqi tribunal. At the time he filed his habeas petition, so was Munaf. But he was subsequently convicted and sentenced to death, and then recently his conviction was overturned by an Iraqi appellate court.

Both filed habeas petitions in the District of Columbia. The habeas statute’s jurisdictional provision states, in relevant part, that the writ “shall not extend to a prisoner unless – (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or … (3) He is in custody in violation of the Constitution or laws or treaties of the United States.”

On its face, the statute does not distinguish between citizens and non-citizens, between those detained or held in custody abroad or at home, between detention in the course of an armed conflict or detention during a period of tranquility, or between the various capacities in which the United States might act when it takes a person into its custody. Yet many of the Justices yesterday indicated a strong inclination that habeas jurisdiction ought to take such matters into account, as did the parties.

Greg Garre, arguing for the United States, spent a good portion of his time attempting to defend the Government’s assertion that the habeas statute does not apply at all when the United States is acting in its capacity as part of a multinational force. The argument is, in my view, rather implausible on its face in light of the language of the statute and the purposes of the Great Writ, but it draws some very real support from a World War II-era decision of the Supreme Court, Hirota v. McArthur. But that decision, hastily and opaquely written, seemed unlikely to carry the day, in light of yesterday’s argument. The more liberal Justices vigorously pressed Garre on his reliance on Hirota. Justice Souter suggested it was distinguishable because it involved a non-citizen (Hirota was a Japanese general), and Justice Ginsburg found it important that Hirota had already been convicted by an international war crimes tribunal so that his habeas petition amounted to collateral attack on that tribunal’s decision (whereas in this case, Omar is awaiting trial and Munaf had his conviction vacated). And Justice Breyer was skeptical that it made any real difference that the U.S. soldiers holding the detainees operated as part of a multinational force, given that it was clear that they took their commands from the Pentagon and the President.

None of this is particularly surprising. What was more telling was that the conservative Justices were virtually silent during this part of the argument, none coming to Garre’s assistance on his reading of Hirota. The Chief Justice, in fact, mildly challenged Garre’s attempt to say that it made no difference in Hirota that the habeas petitioner was an alien, noting that his argument relied in part on Justice Douglas’s concurrence rather than the Court’s opinion.

At the same time, there seemed to be no appetite on the Court to give the habeas statute great breadth in the context of U.S. detentions in Iraq. Several Justices noted that the U.S. has detained thousands of Iraqis for common crimes, holding them for a time on behalf of the Iraqi government until they could be taken into Iraqi custody or tried in an Iraqi court. This implied that at least some of the Justices would draw a line between citizens and non-citizens, even though the statute’s text does not.

On the other hand, Justice Stevens seemed to think that there was no basis for that distinction, while preferring to draw another one that also has no express basis in the text – he continually pressed both sides on whether Iraq should be considered a zone of active combat hostilities and whether that should make any difference. When Garre said that the United States was not making that argument (perhaps, among other reasons, because the Administration would prefer not to characterize the progress in stabilizing Iraq in such dismal terms) Justice Stevens told him “That means you haven’t made your strongest argument.” Justice Breyer, however, immediately made clear his view that the situation in Iraq was more akin to an occupation (as in Hirota) than active combat hostilities.

In this context, one can have some sympathy for the detainees’ counsel in his efforts to try to build a coalition for his clients – even among the more liberal Justices there was a multiplicity of views about where the jurisdictional line should be drawn. And when counsel tried to broaden his theory to include the factors the various Justices seemed to deem relevant, the Chief Justice repeatedly challenged his jurisdictional principle as too complicated and indeterminate.

I mentioned that many of the various lines discussed at oral argument seem to have no basis in the text of the habeas statute’s relevant jurisdictional provision. This is a bit over-simplified, in that I think that the concept of “jurisdiction” in habeas cases has expanded to include the broader concept of the power of a habeas court to issue certain kinds of relief in certain kinds of cases. Such considerations might more naturally be considered as going to the merits or remedy, issues upon which the habeas statute has little to say. But I think those issues have, in many respects, been converted into “jurisdictional” issues out of a desire to provide a more immediate, threshold determination of whether the detainee presents the kind of case for which habeas is available. The result, however, is that although one might desire jurisdictional rules to be simple, and the lines they draw to be bright, the jurisdictional determination in this case, and others like it, necessarily becomes complicated and contentious.

10 Comments »

No, no one cannot have “some sympathy for.” Unless one is blatantly trying to cover up a terrible oral argument performance by an advocate who has a nutty legal theory. I would urge everyone to read the transcript themselves, including the following on page 56:

JUSTICE KENNEDY: But you’ve just said that it’s unlawful. You said that an American law enforcement officer working in another country who takes custody of a wanted criminal cannot turn him over to the government of that country. That’s just got to be wrong.

Comment by Jacques McKenzie — March 26, 2008 @ 12:22 pm
I must take the bait and respond to Jacques McKenzie’s drive-by trashing of Joe Margulies, my friend and colleague in the Guantanamo litigation. (I’m not involved in Munaf/Omar.)

Nothwithstanding the twists and turns of the oral argument, Joe did as well as possible with a case that Kevin has so well distilled in the final sentence of his perceptive post, above.

I’d also point out that Greg Garre seemed to make no more headway with the Justices than did Joe. Greg performed superbly, as usual, but he too was stuck with difficult issues.

Whatever one thinks of the argument, Joe doesn’t deserve mockery or contempt. He has devoted his life to capital cases and took on the Guantanamo prisoners when no one else had the guts to do so. There should be more lawyers like him.

Comment by David Remes — March 26, 2008 @ 1:26 pm
Read the transcript yourself, people. Do not rely on Linda Greenhouse’s biased reporting.

Comment by Jacques McKenzie — March 26, 2008 @ 2:07 pm
David,

With all respect to Mr Margulies, he was unclear and contradictory. His reasoning seem to change everytime he is pressed. At least, Mr Garre made it clear where he stands and accept the pitfalls of his arguments.

I’ve read the transcript twice and I still don’t know if citizenship matters in his argument. If his argument is solely on control, then the citizenship argument shouldn’t matter. He shouldn’t have let the justices tempt him into incorporating all sorts of factors into his argument. If it’s a myriad of factors, then he should have concede that it isn’t a bright line rule and spell out how they would work together.

Comment by Chee Foong Chew — March 26, 2008 @ 3:20 pm
David:

Mr. Margulies is not “stuck with difficult issues.” Rather, he is advancing a frivolous argument.

The issue here is not the nationality of the prisoner or even the nationality of the prisoner’s guards. Rather, a US court simply does not have habeas corpus jurisdiction to rule on whether a criminal suspect is being properly detained in a foreign country pursuant to foreign law under the jurisdiction of a foreign court.

Imagine if you will that a Mexican national is being held pursuant to an arrest warrant issued by a US court for violation of US criminal statutes in a private prison in the United States run by a Mexican multinational company.

Imagine now how the US court with jurisdiction over the criminal suspect would react to a Mexican court order holding that the suspect was not being properly held under US law and ordering the Mexican company to release the suspect and transport him out of the United States.

Comment by Bart DePalma — March 26, 2008 @ 7:14 pm
A better analogy than the one used by Bart DePalma would be a Mexican national held in a holding cell within a Mexican embassy in New York City in the face of an arrest warrant issued by a U.S. court for a violation U.S. law within the U.S. A Mexican court order in that circumstance would be a quite natural thing to expect.

Also the argument Justice Kennedy makes with rhetorical flourist which is quoted in comment #1 to this post, while subtle, is a rabbit trail. The answer lies in the nature of habeas law.

Habeas is a writ directed at the custodian while someone is currently in the custody of a custodian over whom the court has jurisdiction (presumably U.S. courts have jurisdiction over U.S. military officers and American law enforcement officers).

The mere right to bring a habeas petition does not constitute an injunction against the custodian prohibiting the custodian from taking action until there is enough time to allow for due process. If a custodian unlawfully gives up custody before being served with a writ, the question is whether a permitted tort claim or constitutional violation was committed, and if so, if any immunity doctrine denys the claimant a remedy.

For the American law enforcement officer who promptly turns a criminal over to local authorities to be impacted by a habeas writ, the petitioner must apply for the writ in a U.S. Court after the criminal comes into the custody of the American law enforcement officer (before which the claim is not ripe) and then serve that American law enforcement officer with the U.S. court issued writ before the criminal is turned over to local authorities. The American law enforcement officer who briefly detains a foreign criminal is also under no duty to provide a lawyer to the arrested criminal or to afford that individual resources to access a U.S. court to make a habeas claim. A next friend must with an attorney hired at his own expense learn of the arrest by the American, gather sufficient facts to make a legally valid claim including the name of the custodian and the nature of the injustice involved, petition a U.S. Court, get the Court to take action, and serve the custodian who is abroad with process all before the criminal is turned over. And, unless he wins on the merits, the only benefit achieved is a modest delay in the transfer of custody.

Also, if the writ fails on its face to state a claim upon which the petitioner is entitled to relief, the U.S. Court probably has the discretion to refuse to deny relief sua sponte and to deny injunctive relief pending appeal, without requiring that the matter be briefed, something the next friend would then have to contest in an appellate court. And petitioners who are able to state claims in a petition for a writ of habeas corpus only because the claim has no factual basis are, of course, subject to sanction under Rule 11.

The first few cases of people detained by the U.S. awaiting criminal charges in Iraq might be heard on the merits, but the precedents established in those early cases would probably allow many latter cases to be resolved on the face of the petitions for habeas submitted. The distinction the Justices seek probably lies in the merits part and not the jurisdictional part.

On the merits it may very well be that people who are not U.S. citizens being detained by American forces while awaiting trial in Iraq for crimes committed in Iraq before a regularly constituted Iraqi court will almost always lose (in the Mexican analogy I suggested above, the Mexican court would likely order extradition as soon as a formal extradition request was made in the absence of a possible death penalty for the crime that is the subject of the arrest warrant).

But if the Iraqi Prime Minister has formally requested that a prisoner for whom an arrest warrant has been issued be turned over to a designated lynch mob, a U.S. habeas court might find that the writ was justified.

Also, it is perfectly reasonable to think that on the merits a U.S. citizen might often be able to assert claims not available to most non-citizens, since most U.S. citizens in Iraq are soldiers or contractors who might claim some form of immunity from Iraqi prosecution, journalists who might claim that their first amendment rights will not be adequately protected in the Iraqi court system, or merchants who might be able to make a credible allegation of corruption within the Iraqi judiciary in their particular case.

Fortunately, since this is the U.S. Supreme Court, in a high profile case involving matters of high policy upon which the Court has already decided to grant certiorari, it isn’t clear the oral advocacy is terribly important at this stage of the process.

Comment by Andrew Oh-Willeke — March 26, 2008 @ 10:48 pm
Camp Cropper does not have extraterritorial status like an embassy. A US law enforcement agent, including an MP, in another country has no more legal right to refuse to turn over a wanted felon than any private citizen, unless there is a treaty saying otherwise. The Iraqi government granted certain powers to the MNF through its application to the UN Security Council. One explicitly granted power was the ability to intern people posing a security threat, but that did not provide for exclusive custody of wanted felons.

Custody is a mutually exclusive question when (as in extradition) two sovereigns contend for complete control over the same prisoner. However, in this case the government of Iraq, which has legal sovereignty over all of the country including Camp Cropper, has requested that the MNF hold certain prisoners on its behalf. The MNF in turn assigned US forces to guard the camp. So when Garre says that the MNF has custody of Omar and Munaf, he is not, as he believes, contradicting the Margulies claim that the US also has custody and the requirements of the Habeas statute are satisfied. In fact, Iraq, the MNF, and the US may all hold custody of the prisoner in different capacities. The DC District Court ruled that both Iraq and the MNF had concurrent legal custody of Munaf. The MNF can at any time replace the US with some other country, so its authority is greater than ours. Iraq, however, can at any time end its agreement with the MNF and take control back, so its authority is even greater.

As was pointed out in the last paragraph of the main post, the arguments may be confusing the absence of any plausible remedy for a jurisdictional claim. To find a better hypothetical:

A US citizen robs a bank in Germany. While escaping, he climbs over the fence around a NATO base and is picked up by US MPs for trespass. Then he is recognized as someone wanted by the German police, but a lawyer in DC files a Habeas petition first. It makes no sense to argue through Hirota that the validity of the petition depends on the semantic question of whether the MPs acted as US soldiers or members of NATO. Neither does it make sense to argue that if the US courts find that he cannot be held on the original trespass claim, that we have to let him go free, count to 100, and shout “ready or not here we come” as Margulies seems to be demanding. He just gets turned over to the German police because anything else is criminal “aiding and abetting” and US courts don’t have a right to order anyone to commit a crime in another country.

Iraq cannot send police to an embassy to size a felon, but it can at any time issue a court order and send officials to Camp Cropper to seize Omar and Munaf. It has been patient up to this point and allowed the US to dig itself out of the hole we created.

Comment by Howard Gilbert — March 27, 2008 @ 8:50 am
But if the Iraqi Prime Minister has formally requested that a prisoner for whom an arrest warrant has been issued be turned over to a designated lynch mob

Way to insult the Iraqis. That’s exactly what we need the Supreme Court to do. Insult sovereign nations that are our allies and humiliate them before the entire world. Talk about judicial modesty!

He just gets turned over to the German police because anything else is criminal “aiding and abetting” and US courts don’t have a right to order anyone to commit a crime in another country.

Hence, Justice Kennedy’s pithy remark.

Comment by Jacqus McKenzie — March 27, 2008 @ 9:31 am
Dahlia Lithwick has an incisive take on the oral argument here:

http://www.slate.com/id/2187385/pagenum/2

Comment by David Remes — March 28, 2008 @ 8:45 am
Dahlia Lithwick, as usual, gets it wrong. Read the transcript.

Comment by Jacqus McKenzie — March 28, 2008 @ 12:57 pm