For the second time in recent weeks, the D.C. Circuit Court has given a new interpretation to a post-World War II decision of the Supreme Court as it applies to U.S. citizens now being detained by the U.S. military in Iraq for alleged crimes overseas, including claims of terrorist acts. This time, the Circuit Court has given a broader reach to that 1948 ruling (in Hirota v. MacArthur). In a decision on Feb. 9, however, another panel of the same Circuit Court narrowed Hirota‘s impact.
The Supreme Court was recently drawn into the controversy over Hirota‘s meaning, but passed up a chance to rule. It seems clear, however, that one or both of the Circuit Court rulings analyzing that precedent will wind up in the Supreme Court for final review.
The decision Friday by the D.C. Circuit came in the case of Munaf, et al., v. Geren (Circuit docket 06-5324). It involves Mohammad Munaf, an American citizen who faces a death sentence imposed by a court in Iraq that had convicted him of an alleged terrorist plot. He is being held by U.S. military forces in Iraq, and could now be transferred to Iraqi custody to face execution, unless that transfer is blocked temporarily while the case continues in U.S. courts. The Circuit Court ruled Friday that U.S. civilian courts have no jurisdiction to hear his habeas challenge to the U.S. Army’s plan to hand him over to Iraqi officials. (Thanks to Howard Bashman of How Appealing blog for the alert to this ruling, and thanks to Howard for linking to this blog’s earlier reports on Munaf’s situation. Those earlier posts are collected here. The decision can be found using its docket number at this link.)
“Our result,” the Circuit Court 2-1 majority said, “is required by the Supreme Court’s decision in Hirota v. MacArthur,” and earlier readings of that ruling in D.C. Circuit precedents. While the Hirota decision involved Japanese citizens tried by an international tribunal, the case of Mohammad Munaf involves a U.S. citizen, thus extending Hirota to Americans who have been tried by non-U.S. tribunals. Munaf, the majority said, was tried and convicted by an Iraqi court, “not a tribunal of the United States. Accordingly, the district court has no power or authority to hear this case.”
Merely because Munaf is a U.S. citizen, the Court said in an opinion written by Circuit Judge David B. Sentelle, does not put his case outside the reach of the Hirota decision because that ruling did not suggest “any distinction between citizens and noncitizens who were held abroad pursuant to the judgment of a non-U.S. tribunal….As in Hirota, Munaf’s case involves an international force, detention overseas, and a conviction by a non-U.S. court.” It added that “conducting habeas proceedings in the face of such a conviction risks judicial second-guessing of a non-U.S. court’s judgments and sentences.”
Munaf’s situation, the majority said, is not different from that of the Japanese involved in the Hirota case even though he is challenging his detention by the U.S. military rather than challenging his conviction by the Iraqi court. He is being held in U.S. custody, Sentelle wrote, because of his conviction by a foreign tribunal.
Sentelle went on to note, in a concluding paragraph, that the Supreme Court’s 2004 decisions on Guantanamo Bay detainees’ cases “are grounds for questioning Hirota‘s continuing vitality.” But, he wrote, “we are not free to disregard Hirota simply because we may find its logic less than compelling.”
Sentelle’s opinion was supported by Circuit Judge Brett M. Kavanaugh. The third judge on the panel, A. Raymond Randolph, dissented and would have found jurisdiction for a District Court to hear Munaf’s habeas case. He said “the critical considerations are that Munaf is an American citizen and that he is held by American forces overseas.” There is, he added, “a longstanding jurisdictional distinction between citizens and aliens detained outside the sovereign territory of the United States.” To extend the Hirota decision to habeas challenges by American citizens, the dissenting judge said, would not only contradict Supreme Court precedent but also would “constitute an unwarrant extension” of Hirota.
Randolph, however, said that, on the merits of Munaf’s challenge to his detention, he would rule that Munaf is not entitled to relief. Congress’ approval of a resolution in 2002 authorizing the U.S. attack that began the Iraq war, plus United Nations resolutions in 2004 and 2005, Randolph said, justify the handover of Munaf to Iraqi authorities to carry out an Iraqi court decision.
At an earlier stage of Munaf’s case, the Supreme Court on Nov. 13 refused to order a delay in his transfer to Iraqi authorities while his case remained in lower courts.
As indicated, Friday’s ruling was the second by the D.C. Circuit this year to apply, or distinguish, the Hirota decision. In that Court’s Feb. 9 decision, in the case of Omar v. Harvey (docket 06-5126), another panel ruled that the 1948 ruling does not apply in the case of a U.S. citizen facing criminal charges in an Iraqi court, but not yet convicted of those charges. In Hirota, the panel said, the individuals involved were not U.S. citizens and had already been convicted. Thus, the Court allowed Shawqi Ahmad Omar’s habeas case to proceed in U.S. District Court in Washington, D.C. (This blog’s report on the Omar decision can be found here.)
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