Government appeals in citizen-detainee case

UPDATE: The petition in Geren v. Omar has now been docketed as 07-394.

The Bush Administration on Friday asked the Supreme Court to return to an issue with constitutional overtones that it has not confronted in nearly six decades: the authority of U.S. courts to hear legal challenges by individuals held abroad in U.S. military custody. In a petition for review in Geren v. Omar (not yet assigned a docket number), the Justice Department said the Court should hear one and perhaps both of two cases involving individuals with U.S. citizenship who are attempting to head off their transfer to the Iraqi government for prosecution or punishment under Iraq’s criminal laws. The cases hark back to the Supreme Court’s 1948 decision in Hirota v. MacArthur.

The Omar case, U.S. Solicitor General Paul D. Clement told the Court, is the stronger candidate for review. But he added that the Court may opt to grant both that case and an already-pending case by another citizen detainee in Iraq, Munaf v. Geren (docket 06-1666), filed on June 13. Besides filing a petition in the Omar case, Clement filed a brief opposing review in the Munaf case, but conceding that the Court may wish to hear the two together.

The petition in Omar can be found here. The opposing brief in Munaf is here.

The main difference between the two cases is that Ahmed S. Omar, who has both U.S. and Jordanian citizenship, has not yet been tried in an Iraqi court on criminal charges, while Mohammad Munaf, who has dual Iraqi and U.S. citizenship, has been convicted in an Iraqi court of a kidnap-for-hire scheme, and has been sentenced to death. Both are in the custody of U.S. military forces in Iraq, but the government insists that they actually are under the control of multi-national coalition forces and that should be their challenges beyond U.S. courts’ reach.

The D.C. Circuit Court reached opposite rulings in the two cases. It concluded that U.S. courts have jurisdiction in the Omar case and it upheld a federal judge’s order barring his transfer to Iraqi authorities for trial, until the judge can rule on Omar’s habeas challenge to his detention by the U.S. military in Iraq. By contrast, in a separate ruling, the Circuit Court concluded that U.S. courts have no jurisdiction in the Munaf case, mainly because he has been convicted and thus American courts could not interfere with a foreign tribunal’s proceedings.

The government raises these questions in the Omar petition:
“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.” The appeal is filed on behalf of Army Secretary Pete Geren, and two American military officers, Major Gen. William H. Brandenburg and Lt. Col. Timothy Houser.

The District Court in that case concluded that the jurisdictional issue was not controlled by the 1948 Hirota decision. In that ruling, the Supreme Court barred federal courts from hearing habeas claims by Japanese nationals who had been convicted by a multinational military court set up by U.S. Gen. Douglas MacArthur representing the Allied Powers in Japan. The District Court also rejected the government claim that federal court review of Omar’s case would violate separation of powers principles.

In its appeal, the Justice Department contended that the federal judge’s order against transfer “overrides the determinations of a multinational force acting pursuant to authority derived from the United Nations at the request of Iraq; interferes with the United States’ international commitments to the United Nations, the other countries comprising the multinational force, and the Government of Iraq; intrudes on Iraq’s sovereign interest in prosecuting serious criminal offenses committed within its own territory; and impedes the fundamental mission of the multinational force to help secure Iraq and establish the legitimacy of vital governmental institutions in Iraq, including its courts.”

In opposing review of the jurisdictional issue in the Munaf case, the Department argues that his habeas challenge “amounts to an impermissible collateral attack on [his] conviction by an Iraqi court based on serious criminal conduct” in Iraq in violation of Iraqi law.