Commentary: Further Thoughts on Munaf/Omar Oral Argument

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.