New citizen-detainee case to Court
on Jun 19, 2007 at 12:48 pm
Attorneys for a U.S. citizen facing execution by Iraq’s government has now taken his case to the Supreme Court in an appeal that asks the Justices to sort out the continuing meaning of — and perhaps to overrule — a brief but historic post-World War II decision. The petition, together with appendix, in Munaf, et al., v. Geren, et al. (docket 06-1666) can be found here. The appeal tests “the continuing vitality” of the 1948 decision in Hirota v. MacArthur, arguing that the result there has been put in doubt by more recent Supreme Court rulings.
The case involves Mohammad Munaf, a native of iraq who became a U.S. citizen in 2000. He is now being held in a U.S. military prison, Camp Cropper, near the airport in Baghdad, Iraq. The military maintains that he is being held, not by U.S. forces, as such, but rather by the international coalition of military forces operating in Iraq. It is that situation (along with Munaf’s conviction in an Iraqi court, followed by a death sentence) that has led the U.S. government to insist that American courts have no authority to hear a challenge to Munaf’s detention and his impending transfer to Iraqi officials to carry out the death sentence.
A divided D.C. Circuit Court ruled on April 6 that U.S. courts lacked jurisdiction under the Supreme Court’s 1948 opinion in Hirota v. MacArthur. The panel majority, though, expressed doubts that Hirota remained good law, in the face of Supreme Court rulings in 2004 in war-on-terrorism cases. (The Supreme Court had refused in November to grant an emergency motion to bar Munaf’s transfer to Iraqi authorities, but the D.C. Circuit has since issued a stay while Munaf appeals to the Supreme Court.)
“The significance of this case,” Munaf’s lawyers argued in their new petition, “can hardly be gainsaid. The Executive Branch argues, and the lower court held, that although Congress has not suspended the Great Writ of Habeas Corpus for U.S. citziens, the United States military may nonetheless detain an American citizen in an overseas American prison indefinitely, or dispatch him to his death at the hands of another sovereign, with no obligation to demonstrate the lawfulness of either his imprisonment or his threatened transfer.”
The petition mounts a full-scale challenge to the Hirota decision, and notes that the Supreme Court itself “has never relied on” it “for any proposition.” The petition cites as the key difference between that case and Munaf’s that the 1948 case involved Japanese citizens, not a U.S. citizen.
“Whatever argument may be made to deny the privilege of litigation to an enemy alien who attempts to mount a collateral challenge to his conviction by a foreign tribunal, it simply has no relevance to a direct challenge by a U.S. citizen to his detention and threatened transfer at the hands of his own countrymen,” the appeal argues.
Even if it U.S. forces in Iraq are operating within an international military coalition, the appeal contends, that cannot result in suspension of the writ for U.’s. citizens.
The Court’s decision at issue — Hirota v. MacArthur — is a cryptic ruling, issued just three days after oral argument. It has been interpreted differently, in fact, by two separate panels of the D.C. Circuit, with the other panel (in Omar v. Harvey) allowing a habeas challenge by another U.S. citizen being held in Iraq, but not yet convicted in an Iraqi court on charges he faces..
Here is the Court’s opinion in Hirota (a separate concurring opinion by Justice William O. Douglas was added after the initial decision on December 20, 1948):
PER CURIAM.
The petitioners, all residents and citizens of Japan, are being held in custody pursuant to the judgments 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, 335 U.S. 876 , and that issue has now neen 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 t ibunal 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.
Mr. Justice DOUGLAS concurs in the result for reasons to be stated in an opinion. Mr. Justice MURPHY dissents. Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time. Mr. Justice JACKSON took no part in the final decision on these motions.
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The government’s response to Munaf’s petition is due (unless the time is extended) on July 16. The Supreme Court probably will not on the case until late summer or early fall.
