Hirota decision’s scope narrowed
on Feb 9, 2007 at 4:31 pm
NOTE: The federal government has been relying heavily on a 1948 decision of the Supreme Court, Hirota v. MacArthur, in seeking to keep U.S. courts from reviewing the U.S. military’s actions toward U.S. citizens accused of crimes in Iraq. In one of those cases, the Supreme Court on Nov. 13 refused to delay the transfer of a U.S. citizen to Iraqi authorities to carry out a death sentence imposed after a criminal conviction in an Iraqi court. That case, however, is still pending in the D.C. Circuit Court, and will be heard there next Friday. This Friday, the D.C. Circuit issued a major ruling in another case, significantly narrowing the reach of the Hirota ruling. The issue is virtually certain to return to the Supreme Court.
In a divided decision, a D.C. Circuit Court panel ruled on Friday that a post-World War II decision barring Japanese officials from challenging in U.S. courts their convictions before a multi-national military tribunal does not apply to the case of a U.S. citizen facing criminal charges in an Iraqi court. The long-awaited decision in Omar v. Harvey (Circuit docket 06-5126) has been viewed by specialists in habeas law as a major test of American courts’ authority to review the habeas claims of U.S. citizens held abroad by the U.S. military for alleged crimes overseas, including claims of terrorist acts.
The panel decision, written by Circuit Judge David S. Tatel, said that “Hirota is not nearly as broad as the government insists.” Nothing in the opinion, the Court majority said, supports the government claim that federal courts may not hear habeas claims any time U.S. officials detain an individual while the military is part of a multi-national force (as is operating now in Iraq). The 1948 decision, it added, is confined to the specific circumstances of that case.
The case before the panel involved Shawqi Ahmad Omar, who has dual American and Jordanian citizxenship. He was arrested by U.S. military forces in Iraq at his home in Baghdad in October 2004. The military claims he was part of a terrorist network in Iraq, and has declared him an “enemy combatant.” He has been in custody for more than two years without charges against him. But, in August 2005, American military officials decided to transfer him to the Central Criminal Court of Iraq for trial; that court has jurisdiction over terrorism crimes. Omar’s wife and son have been challenging his detention in a habeas proceeding in U.S. District Court in Washington since December 2005.
The government challenged the District Court’s jurisdiction under the Hirota precedent. Last February, U.S. District Judge Ricardo M. Urbina in Washington temporarily blocked Omar’s transfer from U.S. or coalition forces custody, finding this was necessary to protect the Court’s authority to resolve the “serious, substantial, difficult” issues raised by Omar’s case.
The government appealed to the D.C. Circuit. While the Omar case was developing, a separate habeas case was unfolding involving the fate of another U.S. citizen being held by the U.S. military in Iraq — Mohammad Munaf. He faces a death sentence imposed by a court in Iraq, and a federal judge, District Judge Royce C. Lamberth, relied in significant part on the Hirota decision in reaching a conclusion opposite to Judge Urbina’s in the Omar case. Lamberth concluded that Munaf was being held by multi-national forces, not by the U.S. military, so a U.S. court has no jurisdiction to hear his claims.
It was in Munaf’s case that the Supreme Court in mid-November decliined to bar his transfer to Iraqi authorities, after the D.C. Circuit Court refused to stop the transfer. Since then, however, the D.C. Circuit has agreed to reconsider the Munaf case, and will hold a panel hearing on it next Friday. The new ruling by a different panel in the Omar case on Friday almost certainly will have some impact on that case, especially in its interpretation of the narrow scope of the Hirota precedent, although there are some differences between the two current cases — for example, Munaf has been convicted, Omar has not even been charged..
Judge Tatel’s opinion in the Omar case was supported by Senior Circuit Judge Harry T. Edwards. Circuit Judge Janet Rogers Brown dissented. Judge Brown agreed that the District Court had jurisdiction to hear Omar’s challenge, but she would have vacated the order barring his transfer.
The majority said that two circumstances in the Hirota decision are the same now in the Omar case — both involved detention abroad, and both involved the existence of a multi-national military force. But there are two other circumstances that differ, the Court said: the habeas petitioners in Hirota were foreign citizens and had been convicted, Omar is a U.S. citizen and has not been convicted. “Were we writing on a clean slate,” Tatel wrote, “we would have to determine which of these circumstances influenced the [Supreme] Court’s decision.”
But, he went on, the Court here was not writing on a clean slate. In a 1949 case, Flick v. Johnson, Tatel noted, the D.C. Circuit had applied Hirota to a habeas case filed by an individual who had been convicted by an international tribunal. The tribunal was not an American tribunal, so the challenge there was dismissed for lack of jurisdiction. “Flick thus holds that the critical factor in Hirota was the…conviction by an international tribunal,” Tatel noted.
In the present case, the majority noted, “Omar has not been charged with a crime related to the allegations now lodged against him, much less convicted of one. Omar seeks not to collaterally attack a final international conviction, but only to test the lawfulness of his extrajudicial detention in Iraq, where he has remained in the control of U.S. forces for over two years without legal process. True, a panel of three military officers found him to be a ‘security internee’ and an ‘enemy combatant,’ but those determinations, based as they are on military considerations, are a far cry from trial, judgment, and sentencing.”
Thus, allowing Omar to pursue his habeas claim in Judge Urbina’s Court, the Circuit Court said, runs no risk of judicial second-guessing of an international tribunal’s final determination of guilt….Challenging extrajudicial detention is among the most fundamental purposes of habeas….The risk of unlawful incarceration is at its peak.”
The panel majority went on to reject a separate argument by the government: that the challenge raises political questions beyond the authority of courts to answer. The Supreme Court has rejected a somewhat similar separation of powers claim in allowing Guantanamo Bay, Cuba, military detainees to pursue habeas challenges, the Circuit panel noted.
The ruling thus would allow Omar’s case to go forward to test two issues: his claim that the military may not transfer him to Iraqi authorities without treaty or statutory authorization, and that the military lacks such authorization. In the meantime, it upheld Judge Urbina’s preliminary order against transfering Omar.
It will be up to the separate panel handling Munaf’s case to determine how far the Omar decision goes to set Circuit precedent binding on other panels. The issue thus may wind up before an en banc D.C. Circuit, perhaps as a preliminary to going on to the Supreme Court.
The panel members in the Munaf case are Circut Judges David B. Sentelle, A. Raymond Randolph and Brett M. Kavanaugh.
