Argument preview: Munaf v. Geren/Geren v. Omar

As the war in Iraq entered its sixth year, the Supreme Court had before it for the first time test cases growing out of the U.S. military’s involvement in that conflict. As in several decisions emerging out of the global “war on terrorism,” the Court will have something to say about the Iraq war by analyzing the rights of detainees captured during military conflict. The new cases of Geren v. Omar (07-394) and Munaf v. Geren (07-1666) involve citizen-detainees, now in the custody of U.S. forces in Iraq; the two captives – like Guantanamo Bay prisoners in terrorism cases — are seeking the aid of U.S. courts.

Background

The U.S. invasion of Iraq in 2003 and the U.S. military’s continuing role in trying to shore up the new government of that country has produced little legal activity in American tribunals, aside from prosecutions of U.S. service members for their roles in torture or atrocities toward prisoners or civilians in Iraq. Those cases, though, have not required American courts to delve into legal questions over the U.S. involvement in the war. The consolidated gates of Geren v. Omar and Munaf v. Geren, however, may require just that.

Those larger questions, with potentially significant foreign policy consequences, are intertwined with the legal fate of two men, both of whom hold U.S. citizenship as well as citizenship in another country. The two men are Sunni Muslims, and both fear torture if they are transferred to Iraqi officials.

One is Shawqi Ahmed Omar, who is a citizen of the U.S. as well as of Jordan. Omar 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, and has declared him to be an “enemy combatant.” He has been held in various U.S. military prisons in Iraq, and currently is in custody at Camp Cropper near Baghdad International Airport. He insists he is not a terrorist, and that he has done nothing wrong. However, a military panel has decided to turn him over to an Iraqi criminal court for investigation and prosecution for crimes under Iraqi law. His wife and his son are attempting to get his release through a habeas challenge. A U.S. District Court judge in Washington has temporarily barred the U.S.government from transferring him to Iraqi custody. That order has been upheld by the D.C. Circuit Court.

The other man is Mohammad Munaf, who is a citizen of the U.S. as well as of Iraq. U.S. and Iraqi authorities asserted that he was involved in the kidnap and detention of several Romanian journalists in Iraq for whom Munaf serves as a translator and guide. He insists he is not a terrorist nor a member of any terrorist or military group. Munaf was arrested, and a military panel decided he was a “security detainee,” and concluded that he should be turned over to an Iraqi criminal court for investigation and prosecution. The Iraqi court convicted him of charges related to his alleged role in the kidnapping-for-hire of the journalists. He was sentenced to death by hanging. He appealed his conviction, and it was overturned by the Iraqi Federal Court of Cassation on Feb. 19 for several legal flaws, but he is to remain in custody while a further investigation proceeds in a lower court. Before the decision was made to turn him over for the prosecution that later led to the guilty verdict, Munaf’s sister challenged his detention in a habeas corpus petition. A U.S. District Court judge ruled that U.S. courts had no jurisdiction over Munaf. His appeal was rejected by the D.C. Circuit Court, but there is a temporary order that bars his transfer to Iraq.

The differing outcomes in Omar’s and Munaf’s cases at the Circuit Court – U.S. courts may hear Omar’s case, but not Munaf’s — apparently provided the main rationale for the Supreme Court to agree review both decisions, consolidating an appeal by U.S. Army Secretary Pete Geren in Omar’s case and an appeal by Munaf in the other case.

As the two cases reached the Supreme Court, the core dispute appears to be over the nature of U.S. military activity in Iraq, especially over how to define the coalition forces there and the U.S. part in them, and the implications of that for U.S. District Court jurisdiction to hear habeas challenges to the transfer of the two men to Iraqi authorities. The cases do not involve any claim by the two citizen detainees that Iraq courts have no authority to try individuals for crimes committed in that country, but rather are challenging only their detention by U.S. military forces. The U.S. military is keeping them prisoner, not any international entity, they contend. The government, however, treats the two cases as potential threats to the sovereignty of foreign nations to try crimes committed on their own soil.

The Circuit Court ruled differently in the two cases by drawing a distinction between the two men’s legal situations – Omar has not been tried, but Munaf has been tried and convicted. In Omar’s case, the Circuit Court said that the case was not controlled by the Supreme Court’s post-World War II ruling in Hirota v. MacArthur (decided in 1948) because that case did not involve U.S. citizens who have been convicted but rather Japanese nationals who had been convicted. Since Omar had not yet been charged or convicted, he was not trying to challenge a foreign court’s authority to conduct trials of crimes abroad. About two months after the ruling in Omar’s case, a different panel of the Circuit Court ruled that Munaf could not proceed in U.S. courts. That panel felt it was bound by the Hirota decision, because he had been convicted and sentenced in a foreign court. His U.S. citizenship, the panel said, did not take his case out of the reach of the Hirota decision.

Petitions for Certiorari

Because Munaf’s lawyers did not seek rehearing in the Circuit Court, his appeal reached the Supreme Court first, in mid-June 2007. The government unsuccessfully sought rehearing in the Circuit Court, but was denied, so appealed to the Justices in September 2007. The cases were considered together, and granted on Dec. 7 for consolidated review.

Munaf’s petition is based upon the assertion that he is actually being held only by U.S. military forces, because they have exclusive control over him. The appeal raised three questions: whether U.S. courts’ habeas jurisdiction is blocked because the U.S. military in Iraq claims to be operating as part of a multi-national force, whether the Court will extend the Hirota decision beyond the specific circumstances of that case, and whether U.S. courts have authority to stop the transfer of a U.S. citizen to carry out a criminal sentence, if the convicting and sentencing came after the habeas challenge had been filed.

The petition assails the lower court for relying, in its denial of habeas jurisdiction, on “the bare fact of Mr. Munaf’s foreign conviction, along with America’s participation” in the military coalition in Iraq. The Circuit Court, it says, combined those two factors “by some uncertain alchemy to strip a federal court of its power to examine the lawfulness of a citizen’s detention and threatened transfer.”

On the key point of U.S. participation in the Iraqi military coalition, that petition asserts that the U,S, is involved only as a result of “an executive agreement” that “cannot suspend the Great Writ for U.S. citizens.”

The Army secretary’s petition, for the government, is based in large part in the character of the “international military coalition” in Iraq, indicating that Omar is being held not as a prisoner of the U.S. military but of the “Multi-National Force-Iraq.” The appeal raises two questions: whether U.S. courts have jurisdiction in that situation to hear a habeas challenge and, if they do, do they have the power to intrude on the coalition decision and on trial in an Iraqi court.

Relying heavily upon the Hirota decision, the government appeal says that it makes clear that U.S. courts “lack jurisdiction to review the detention of individuals held abroad pursuant to international authority, including individuals held by United States forces under American command as part of a multinational force.” It was wrong, the petition contends, to create a criminal conviction exception to the rule of Hirota. By adopting such an exception, the appeal goes on, U.S. courts will have “a perverse incentive” to interfere with foreign governments’ criminal justice systems in order to preserve the U.S. courts’ jurisdiction in habeas cases.

But, the petition adds, on the second issue raised, that even if U.S. courts have some jurisdiction to entertain habeas petitions in this situation, they should not be allowed to use it to issue an injunction that does, in fact, intrude not only on the decisions of a multinational force operating under the United Nations, but also on Iraq’s “sovereign interest in prosecuting serious criminal offenses committed within its own territory.”

After granting review of both petitions, the Court received briefs and then set the consolidated cases for one hour of argument on Tuesday, March 25.

Merits Briefs

The combined brief of the two citizen-detainees puts much stress on the core argument that the true jailer for them is the U.S. military. “Omar and Munaf are detained by U.S. soldiers. Their immediate custodian is a Lieutenant Colonel in the U.S. Army. Every officer in the chain of command is a soldier in the U.S. Army. Their ultimate custodian, the Secretary of the Army, is present within the district court’s territorial jurisdiction. The U.S. military – not the U.N., not any coalition partner, and not Iraq – has plenary and exclusive authority over their custody.”

On the basic claim of a right to pursue habeas relief, the detainees’ merits brief argues that “only Congress has the power to limit a citizens’ constitutional right to challenge Executive detention. And the Executive cannot by international agreement achieve what the Constitution forbids.” If the mere assertion of “international authority” were sufficient, the brief contends, Executive officials could seize and detain citizens inside the U.S. “without judicial review.”

The brief also offers a sturdy defense of American judges’ power to issue “a standstill injunction,” as was done in Omar’s case. If a federal court has no authority to enter “such routine interim relief, habeas jurisdiction is hollow and Due Process a nullity.” What is being sought from a federal judge in these cases, the brief says, is a review of the challenge to indefinite detention by U.S. officers, and the challenge to transfer to foreign custody “and the consequent high risk of torture.” What it at issue now, it says, is not a final injunction but merely one that “freezes the status quo.” Whatever the District Courts then decide could be reviewed by the Supreme Court.

The government’s merits brief makes a fervent bid for respect for “separation of powers” and respect for what it considers “the basic teaching of Hirota.” Allowing American courts to oversee the military’s handling of detainees in an overseas theater of war, the brief warns, risks serious interference with “the Nation’s conduct of foreign and military affairs.” But, of equal importance, it warns of the prospect for American judicial interference with “the sovereign prerogative of foreign nations to try individuals for the commission of criminal offenses within their own borders.”

On the core dispute over the nature of the entity that is holding the two citizen-detainees, the government brief strenuously defends its notion that this is an international body, not the U.S. military. “Here, the U.N., the United States, and the 26 other nations participating in the MNF-I all view the multinational force as having a distinct identity from the forces of any particular nation.” While U.S.forces are, “to say the least, a vital component” of that coalition, that was true of the forces taking part in the Allied Powers in Japan involved in the prosecution at issue in the Hirota decision.

The citizen-detainees draw the support of eight friend-of-Court filings, several arguing the need for strict adherence to the rights of U.S. citizens to challenge Executive Branch detention. There are no amici filings on the government’s side. Among the detainees’ supporters, there is a studied effort to counter the government’s insistence upon the international character of the coalition in Iraq. A group of “former U.S. diplomats and national security specialists” seeks to draw a clear distinction between “Blue Helmet” international military forces. “Blue Helmet” forces, that brief suggests, are truly international, because they operate under the U.N. or other international organizations with troops voluntarily provided by member countries. The commander of such forces is named by the international body, they note. But “Green Helmet” forces, even if authorized internationally, are under the “unified command: of a national military. “By any measure,” the brief concludes, the Iraqi coalition is a Green Helmet force – limiting, it argues, the impact on international relations that would follow from U.S. courts exercising habeas review to judge detention by Green Helmet U.S. forces.

The National Institute of Military Justice suggests that, contrary to the government brief putting U.S. actions in Iraq under “international authority,” the government “has consistently averred that these forces always act pursuant to the unified command of the United States, and to that authority alone.”

There is a brief from journalists and press organizations, arguing that, “in the fog of war,” journalists on the ground in Iraq and other war zones involving U.S. military forces “face a substantial risk of being detained erroneously in the course of executing their professional responsibilities.” Thus, they contend, “a system of unchecked and unreviewable detention would have devastating consequences for the many journalists and other civilians in Iraq and in future areas of military conflict.”

Analysis

Three facets of these cases probably will be important in shaping the Court’s reaction to them and its ultimate decision: U.S. citizens are involved, U.S. activity in a war zone is implicated, and a foreign government’s interests may be affected.

The Court has shown, in the 2004 decision in Hamdi v. Rumsfeld (a war on terrorism case), that it is reluctant to deny U.S. citizens who are being detained any meaningful opportunity to challenge their captivity. That would seem to cut in favor of Munaf and Omar; it certainly was a key factor that aided Omar in the Circuit Court.

But, in the past, the Court has shown repeatedly that it is hesitant to step very deeply into military theaters of operation to assert judicial authority. Whatever the nature of the U.S. involvement in Iraq, the Court almost certainly accepts that U.S. forces are indeed operating in a battle zone, and the capture of individuals suspected of being insurgents (or tied to them) might well be seen as a matter of military necessary. That cuts in the government’s favor.

And, in decisions that go all the way back to Chief Justice John Marshall and 1812, the Court has refused to second-guess a sovereign nation’s authority when operating within its own territory, perhaps especially in enforcing its own criminal code. Although Iraq’s government is not directly involved in the case (and the detainees do not challenge its territorial sovereignty or its power to punish for crimes committed there), the Justice Department has striven to link the Munaf and Omar cases with supposed challenges to Iraqi sovereignty. That, too, might cut in the government’s favor.

A question of some complexity that looms large in the case, of course, is whether the Hirota decision is controlling (and therefore must be overruled if the detainees are to win). If the Justices conclude that it is a precedent directly at issue, they probably would then have to confront the nature of the coalition in Iraq – is it the same as the Allied Forces in Japan, or something different? This, too, might require it to second-guess presidential and military judgments, and that might be uncomfortable. They could, perhaps, distinguish it away, as the detainees suggest, and leave it on the books as a somewhat irrelevant relic of the World War II era.