Geren v. Omar - Brief (Merits)

Docket number: 
Nos. 07-394 and 06-1666
Supreme Court Term: 
2007 Term
Court Level: 
Supreme Court

Nos. 07-394 and 06-1666

 

In the Supreme Court of the United States

PETE GEREN, SECRETARY OF THE
ARMY, ET AL., PETITIONERS

v.

SANDRA K. OMAR AND AHMED S. OMAR, AS
NEXT FRIENDS OF SHAWQI AHMAD OMAR

MOHAMMAD MUNAF, ET AL.

v.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL PARTIES

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
DARYL JOSEFFER
Assistant to the Solicitor
General
DOUGLAS N. LETTER
JONATHAN H. LEVY
LEWIS S. YELIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

Shawqi Omar and Mohammed Munaf are United States citizens who voluntarily traveled to Iraq, alleg edly committed serious crimes there, were captured in an active combat zone by an international military force, and are being held under international authority and at the request of the Iraqi government by United States military personnel acting as part of that multinational military coalition. Munaf, a dual Iraqi-United States national, has also been tried and convicted by an Iraqi court of participation in a kidnapping-for-hire scheme in Iraq. Omar has not yet been tried by an Iraqi court be cause the district court preliminarily enjoined the multi national force from transferring him to Iraqi custody or allowing him to be tried in Iraqi courts.

The questions presented are:

1. Whether the United States courts have jurisdic tion to entertain a habeas corpus petition filed on behalf of an individual such as Omar or Munaf challenging his detention by the multinational force.

2. Whether, if such jurisdiction exists, the district court in Omar had the power to enjoin the multinational force from releasing Omar to Iraqi custody or allowing him to be tried before Iraqi courts.

 

 

PARTIES TO THE PROCEEDINGS

The petitioners in No. 07-394 are Pete Geren, Secretary of the Army; William H. Brandenburg, Major General- Deputy Commanding General (Detainee Operations); and Timothy Houser, Lieutenant Colonel.

The respondents in No. 07-394 are Sandra K. Omar and Ahmed S. Omar, acting as next friends of Shawqi Ahmad Omar.

The petitioners in No. 06-1666 are Mohammed Munaf and Maisoon Mohammed, acting as next friend of Moham med Munaf.

The respondents in No. 06-1666 are Pete Geren, Secre tary of the Army; William H. Brandenburg, Major General- Deputy Commanding General (Detainee Operations); and Timothy Houser, Lieutenant Colonel.

In the Supreme Court of the United States

No. 07-394

PETE GEREN, SECRETARY OF THE
ARMY, ET AL., PETITIONERS

v.

SANDRA K. OMAR AND AHMED S. OMAR, AS
NEXT FRIENDS OF SHAWQI AHMAD OMAR

No. 06-1666

MOHAMMAD MUNAF, ET AL.

v.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL PARTIES

OPINIONS BELOW

The opinion of the court of appeals in No. 07-394 (07- 394 Pet. App. 1a-39a) is reported at 479 F.3d 1. The opinion of the district court in that case (07-394 Pet. App. 40a-58a) is reported at 416 F. Supp. 2d 19. The opinion of the court of appeals in No. 06-1666 (06-1666 Pet. App. 1-9) is reported at 482 F.3d 582. The opinion of the district court in that case (06-1666 Pet. App. 10-38) is reported at 456 F. Supp. 2d 115.

JURISDICTION

In No. 07-394, the court of appeals entered judgment on February 9, 2007. The petition for rehearing was denied on May 24, 2007 (07-394 Pet. App. 61a-62a). On August 15, 2007, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including September 21, 2007, and the petition was filed on that date. In No. 06-1666, the court of appeals entered judgment on April 6, 2007. The petition for a writ of certiorari was filed on June 13, 2007. In both cases, the jurisdiction of this Court rests on 28 U.S.C. 1254(1). As explained below, the government's position is that the United States courts lack jurisdiction over these habeas actions.

STATUTORY PROVISIONS INVOLVED

Pertinent provisions are reprinted in the appendix to the petition in No. 07-394 (07-394 Pet. App. 65a-67a).

STATEMENT

1. a. The Multinational Force-Iraq (MNF-I) is an internationally authorized entity consisting of military forces from approximately 27 nations, including the Uni ted States. 07-394 Pet. App. 100a-101a. The MNF-I operates in Iraq at the request of the Iraqi government and under United Nations (U.N.) Security Council reso lutions authorizing it "to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to" the resolutions. Id. at 74a (S.C. Res. 1546, ¶ 10, at 4, U.N. Doc. S/RES/1546 (June 8, 2004)); see id. at 82a. Pursu ant to its U.N. mandate, the MNF-I operates under the "unified command" of United States military officers, id. at 74a, but it is legally distinct from the United States military, has its own insignia, and includes high-ranking officers from other nations (for example, the second in command, Lt. Gen. William Rollo, is a British officer).1

Under the letters referenced in the U.N. resolutions, the MNF-I is charged with, among other tasks, detain ing individuals where "necessary for imperative reasons of security." 07-394 Pet. App. 86a. A letter attached to the most recent U.N. resolution states that the Govern ment of Iraq is "responsible for arrest, detention and imprisonment tasks," but that the MNF-I should also undertake those activities with "maximum levels of coor dination, cooperation and understanding with the Gov ernment of Iraq." S.C. Res. 1790, Annex I, ¶ 4, at 6, U.N. Doc. S/RES/1790 (Dec. 18, 2007). Pursuant to the U.N. resolutions, the MNF-I holds detainees, including individuals like Omar and Munaf who have committed hostile or war-like acts, as security internees.

In addition, under the authority of the U.N. resolu tions, the Government of Iraq and the MNF-I agreed that the MNF-I would maintain physical custody of indi viduals suspected of criminal activity in Iraq pending investigation and prosecution in Iraqi courts under Iraqi law, because, among other reasons, many Iraqi prison facilities have been damaged or destroyed in connection with the ongoing hostilities. See 06-1666 Pet. App. 12; J.A. 48. The MNF-I holds those individuals as security internees during Iraqi criminal proceedings. J.A. 48.

b. The Central Criminal Court of Iraq (CCCI) is an Iraqi court under Iraqi governance, staffed by Iraqi judges who apply Iraqi law. 07-394 Pet. App. 104a. The CCCI is divided into two chambers: an investigative court and a felony trial court. Ibid. The investigative court conducts an investigative hearing, during which witnesses present sworn testimony, to determine whe ther there is sufficient evidence to warrant a criminal trial. Id. at 104a-105a. If the investigative court deter mines that there is sufficient evidence to proceed, it for wards a report to the trial court and recommends charges. Id. at 105a. The trial court sits in panels of three judges, who review the evidence submitted by the investigative court and may take additional evidence in formal proceedings. Ibid. In both investigative and trial proceedings, a defendant is entitled to be repre sented by counsel. Id. at 105a-106a. The proceedings are open to the public.

The CCCI has heard hundreds of cases since the fall of the Hussein regime, and many of those cases have involved individuals detained by the MNF-I during the course of the proceedings. The proper functioning of the court has been a key concern of the MNF-I in promoting stability and security in Iraq, given that "[e]stablishing the rule of law is the cornerstone of a free and demo cratic society." Joseph Giordono, Trying Insurgents in Iraqi Courts Seen as Big Step in Rebuilding Legal Sys tem, Stars and Stripes, Dec. 26, 2004 <www.stripes.com/ article.asp?section=104&article=25317&archive=tru e)> (quoting MNF-I officer).

2. a. Shawqi Omar is an American-Jordanian citizen who voluntarily traveled to Iraq in 2002. See 07-394 Pet. App. 2a, 101a-102a. In October 2004, he was captured by MNF-I forces during a raid of his Baghdad home. The raid was part of an effort to target associates of Abu Musab al-Zarqawi, the former Al-Qaeda leader in Iraq. See ibid. Omar was found harboring an Iraqi insurgent and four Jordanian Jihadist fighters. Id. at 101a-102a. Upon their capture, the individuals seized with Omar stated that, while living in his home in Baghdad, they surveilled potential kidnap victims, conducted weapons training, and engaged in other insurgent cell activities. Id. at 102a. Those individuals, as well as Omar, also explained that Omar planned to use his fluency in Eng lish to entice foreigners to return to his home where they could be kidnapped and ransomed. Ibid. At the time of his capture, Omar had several weapons and ex plosive-making materials in his home. Id. at 103a.

Since his capture, Omar has remained in the custody of members of the United States armed forces operating as part of the MNF-I. See 07-394 Pet. App. 1a. Follow ing Omar's capture, a three-member MNF-I tribunal "conducted a proceeding that exceeded the due process requirements of Article 5 of the Third Geneva Conven tion of 1949." Id. at 103a. Omar was present at the hearing and had an opportunity to make a statement and to call available witnesses. Ibid. The tribunal found that Omar was a security internee under the authority of the U.N. resolutions, i.e., that he posed a threat to the security of Iraq, and that he was also an enemy combat ant in the war on terrorism, i.e., that he had committed hostile and war-like acts. See ibid. In August 2005, the MNF-I determined to refer Omar to the CCCI for inves tigation and criminal prosecution for offenses committed in Iraq. Id. at 3a-4a.2

b. In December 2005, before the MNF-I referred Omar to the CCCI, one of Omar's wives and a son filed this next-friend habeas corpus petition on Omar's behalf in the District Court for the District of Columbia. 07- 394 Pet. App. 4a. The district court issued a preliminary injunction directing that "the respondents, their agents, servants, employees, confederates, and any persons act ing in concert or participation with them, or having ac tual or implicit knowledge of this Order by personal ser vice or otherwise, shall not remove [Omar] from United States or MNF-I custody." Id. at 59a.

The district court rejected the government's thresh old contention that it lacked jurisdiction under Hirota v. MacArthur, 338 U.S. 197 (1948) (per curiam), in which this Court held that the United States courts lacked ju risdiction over habeas petitions filed by Japanese na tionals held abroad by a multinational force-the Allied Powers-pursuant to international authority. Id. at 198. In so holding, the district court pointed to the fact that Omar (unlike the habeas petitioners in Hirota) is a Uni ted States citizen. 07-394 Pet. App. 47a-48a. In addi tion, pointing to Justice Douglas's concurring opinion in Hirota, the district court reasoned that the fact that Omar was in the immediate custody of United States armed forces created jurisdiction. Id. at 52a.

The district court entered its order barring Omar's release from MNF-I custody on the ground that "any physical transfer of [Omar] may prematurely moot the case or undo this court's jurisdiction." 07-394 Pet. App. 55a. Although the court recognized that Omar's "ap pearance before the CCCI does not constitute an imme diate transfer to the Iraqi authorities," the court never theless also barred the MNF-I from presenting Omar for any proceedings before the CCCI on the theory that Omar might be "presented to the CCCI and in that same day, be tried, convicted and transferred to the CCCI's jurisdiction." Id. at 56a; see id. at 59a-60a.

c. The court of appeals affirmed. 07-394 Pet. App. 1a-39a.

i. The court of appeals held that the district court properly exercised jurisdiction. The court of appeals recognized that the case is like Hirota in that Omar is being held "overseas" by a "multinational force," but it held, based on its reading of circuit precedent, that the basic jurisdictional limitation established by Hirota for individuals held abroad by multinational forces pursuant to international authority does not govern this case be cause Omar has not yet been convicted by Iraqi courts based on the alleged criminal offenses for which he is being held. 07-394 Pet. App. 11a, 12a-13a.

A panel majority also upheld the district court's in junction. 07-394 Pet. App. 20a-26a. Although the panel majority recognized that the district court lacked au thority to enjoin Omar's outright release, id. at 20a, the panel majority nonetheless concluded that the district court properly enjoined Omar's transfer to Iraqi cus tody, his release accompanied by information sharing with the Iraqi government that would enable Iraq to arrest Omar upon his release, and his prosecution by the Iraqi courts. Id. at 20a, 23a, 25a. The court reasoned that such steps were warranted to preserve the district court's jurisdiction to consider the legality of any trans fer of Omar to Iraqi custody. Id. at 23a-24a.

ii. Judge Brown dissented. 07-394 Pet. App. 27a-39a. She joined the panel's threshold ruling on jurisdiction, but would have vacated the district court's injunction against transfer. Id. at 27a. Judge Brown concluded that the courts had no basis to enjoin a transfer that "means simply allowing Iraqi officials to arrest and take custody of a person who was captured in Iraq and has remained there continuously-something they undeni ably have a right to do." Id. at 35a-36a.

Judge Brown also objected to the scope of the injunc tion, which prevents any coordination between the MNF-I and Iraqi authorities as to Omar. She explained that, especially because Iraq has "exclusive jurisdiction to punish offenses against its laws committed within its borders," a court cannot "enjoin the United States mili tary from sharing information with an allied foreign sov ereign in a war zone * * * with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture." 07-394 Pet. App. 34a, 36a (quoting Wilson v. Girard, 354 U.S. 524, 529 (1957)). "Any judi cial order barring this sort of information sharing in a military zone," Judge Brown explained, "would clearly constitute judicial interference in a matter left solely to Executive discretion." Id. at 33a.

Judge Brown concluded that the injunction upheld by the panel majority constitutes an "unprecedented" inter ference "in the decisions of sovereigns acting jointly within the same territory," amounts to a clear "trespass" on Executive authority, and imposes a "substantial im pairment to the Executive's ability to prosecute the war efficiently and to make good on its commitments to our allies." 07-394 Pet. App. 34a, 36a-37a, 38a.

3. a. In March 2005, Mohammad Munaf, a dual Ira qi-United States citizen residing in Romania, voluntarily traveled with several Romanian journalists to Iraq, os tensibly to serve as the journalists' translator and guide. J.A. 32-33. Shortly after their arrival in Iraq, the group was kidnapped and held captive for over two months. J.A. 33. After the captives were freed, MNF-I forces detained Munaf because they suspected that he was in volved in the kidnapping. J.A. 43.

In July 2005, a tribunal of three MNF-I officers re viewed Munaf's status and detention. J.A. 44. Munaf was present at the hearing, and he had an opportunity to hear the basis for his detention, make a statement, and call immediately available witnesses. Ibid. The panel determined that Munaf was a security internee who should continue to be detained for imperative reasons of security, in accordance with the MNF-I's U.N. mandate. Ibid. The MNF-I subsequently referred Munaf's case to the CCCI for investigation and possible trial. Ibid.

Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists. J.A. 46. Munaf also appeared as a witness against his accomplices, including his brother-in-law. J.A. 46-48. Munaf was represented by counsel of his choice at the hearings, and was afforded the opportunity to present evidence and call witnesses. J.A. 45-46, 61. The Iraqi investigative court determined that there was sufficient evidence to proceed, and it referred the case to the trial court. J.A. 48.

During the trial before the CCCI, Munaf and his at torneys again had the opportunity to present evidence and call witnesses. 06-1666 Pet. App. 14. Munaf and his codefendants testified at trial and recanted the confes sions they had made in the investigative court, alleging that Iraqis or Romanians had forced them to confess. J.A. 62. After considering the evidence gathered by the investigative court, taking the additional statements from the defendants, and hearing argument from the Iraqi prosecutor and multiple defense attorneys, the trial court found Munaf and his five codefendants guilty of kidnapping and sentenced them to death. J.A. 61-63.3

An automatic appeal to the Iraqi Court of Cassation is pending. See J.A. 64-65. In accordance with its U.N. mandate and arrangement with the Government of Iraq, the MNF-I is continuing to hold Munaf on behalf of the Iraqi government until the resolution of his appeal.

b. In August 2006, after the CCCI investigative hearing but before his trial and conviction by the CCCI, Munaf, through his sister as next friend, filed this ha beas corpus action seeking, among other relief, his re lease from MNF-I custody and an order barring his transfer to Iraqi custody. 06-1666 Pet. App. 14. Munaf also sought a temporary restraining order to prevent his transfer to the Iraqi authorities. Ibid.

The district court denied Munaf's motion for a tem porary restraining order and dismissed his habeas ac tion for lack of subject matter jurisdiction. 06-1666 Pet. App. 10-38. The court concluded that this case was con trolled by Hirota because Munaf is "in the custody of coalition troops operating under the aegis of MNF-I, who derive their ultimate authority from the United Na tions and the MNF-I member nations acting jointly," as well as in the "constructive custody of the Republic of Iraq, which is seized of jurisdiction in the criminal case against him." Id. at 22. The district court rejected Munaf's attempt to distinguish Hirota on the ground that he is a United States citizen. Id. at 24-25. The court explained that Hirota turned on the fact that the petitioners were held in custody under international, and not United States, authority, and that the source of authority does not change with citizenship. Id. at 25.

c. The court of appeals affirmed. 06-1666 Pet. App. 1-9.

i. The court held that dismissal was required by Hirota because neither the MNF-I nor the CCCI is "a tribunal of the United States." 06-1666 Pet. App. 2, 3-4. Like the district court, the court of appeals explained that "Hirota did not suggest any distinction between citizens and noncitizens who were held abroad pursuant to a judgment of a non-U.S. tribunal." Id. at 4. Rather, based on the court of appeals' decision in Omar, the court stated that "the critical factor in Hirota was the petitioners' convictions by an international tribunal." Ibid. (quoting 07-394 Pet. App. 12a). "As in Hirota," the court explained, "Munaf's case involves an international force, detention overseas, and a conviction by a non-U.S. court." Ibid. "[C]onducting habeas proceedings in the face of such [an international] conviction," the court con tinued, "risks judicial second-guessing of a non-U.S. court's judgments and sentences." Id. at 4-5.

ii. Judge Randolph concurred in the judgment. 06-1666 Pet. App. 7-9. He concluded that the district court had jurisdiction because Munaf "is an American citizen * * * held by American forces overseas," but he would have denied the habeas petition and request for an injunction against transfer on the merits. Ibid.

Judge Randolph concluded that the case is governed by Wilson v. Girard, supra, in which this Court set aside an injunction against the transfer of an American soldier within Japan to Japanese authorities to face charges stemming from a shooting in Japan. In Wilson, Judge Randolph explained, this Court reaffirmed that a "sov ereign nation has exclusive jurisdiction to punish of fenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction." 06-1666 Pet. App. 9 (quoting Wilson, 354 U.S. at 529). Judge Randolph concluded that Wilson compels dismissal of Munaf's habeas action and request for an injunction against transfer. See 06-1666 Pet. App. 9.

SUMMARY OF ARGUMENT

The United States courts lack jurisdiction to review habeas petitions filed on behalf of individuals held by a multinational force abroad pursuant to international authority. This Court laid down that jurisdictional rule in Hirota v. MacArthur, supra, and that rule suffices to dispose of these cases. But even if the Court were to overrule Hirota, it would still be error to enter relief, like that granted in Omar, that would interfere with the foreign sovereign's efforts to prosecute individuals for criminal conduct within its borders.

I. The threshold jurisdictional question in these cases is governed by Hirota. That case establishes that United States courts lack jurisdiction to review the de tention of individuals held abroad pursuant to interna tional authority, including individuals held by United States forces acting as part of a multinational force. Because individuals held pursuant to international au thority are not "in custody under or by color of the au thority of the United States," the writ of habeas corpus does not extend to them. 28 U.S.C. 2241(c)(1). In Hirota, this Court held that the United States courts lacked jurisdiction to review habeas petitions filed by Japanese nationals who were held by United States forces, acting as part of the Allied Powers, pursuant to the judgment of an international tribunal. So too here, Omar and Munaf are held overseas pursuant to interna tional authority by United States forces acting as part of a multinational force. That multinational force is acting at the request of the Government of Iraq and pursuant to U.N. resolutions, and it is holding Munaf and Omar pursuant to a determination by a tribunal convened un der such international authority and, in Munaf's case, a conviction by an Iraqi court.

The exercise of habeas jurisdiction in these cases not only would contravene this Court's decision in Hirota, but would interfere with the Executive Branch's solemn international commitments and its ability to carry out its foreign policy and military objectives. Other nations would inevitably take offense if American courts were to assume the authority to review the determinations of international bodies in which United States forces or personnel may participate abroad, and if the United States courts assume such jurisdiction, the courts of other nations could do so as well. These concerns are magnified by the fact that the United States courts would be reviewing detention determinations made, not unilaterally by the United States, but by the MNF-I and (especially in Munaf's case) by the Iraqi government.

The court of appeals erred in restricting Hirota's holding to detainees (like Munaf) who have already been convicted of criminal offenses by a foreign or interna tional tribunal. As Munaf's own counsel acknowledges, nothing in Hirota's rationale supports such a "criminal conviction" limitation. Such a rule would also lead to anomalous results. In particular, it would mean that the existence of jurisdiction could fluctuate depending on the course of foreign criminal proceedings, and it would create a perverse incentive for United States courts to intervene prematurely to "preserve" their asserted ju risdiction by enjoining foreign courts from exercising their undoubted jurisdiction over persons within their borders, as the district court did in Omar.

II. Even if the Court were to not heed principles of stare decisis and overrule Hirota, it should still over turn the district court's extraordinary injunction against (1) transferring Omar to Iraqi custody, (2) sharing with the Iraqi government details concerning any decision to release him, and (3) allowing him to appear before the Iraqi courts to answer for alleged crimes committed in Iraq. That injunction represents an unprecedented in trusion on a foreign sovereign's jurisdiction over alleged criminal offenses committed within its borders and the Executive's own foreign policy and military objectives.

This Court long ago settled that a "sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction." Wil son, 354 U.S. at 529. Wilson forecloses the argument that any affirmative statutory or treaty authorization is required to surrender custody of a United States citizen to a foreign sovereign when, as here, the individual is being held in the foreign country. Instead, Wilson puts the onus on the habeas petitioner to identify a statute or treaty barring such a transfer. Where there is no stat ute or treaty barring transfer, Wilson establishes that the United States courts lack authority to frustrate the jurisdiction of foreign sovereigns to bring individuals to justice for criminal offenses committed within their bor ders. Extradition case law is not to the contrary, be cause Wilson, like this case, does not involve an extradi tion of an individual from one country to another, but instead the transfer of an individual within a country.

Because no statute or treaty bars the transfer of Omar to Iraq, Wilson controls and requires that the district court's injunction be set aside. Indeed, that con clusion is even stronger here than in Wilson. The MNF- I detained Omar and Munaf in wartime pursuant to its international authority to assist the Government of Iraq by partnering and coordinating with Iraqi security forces. Surrendering Omar and Munaf to Iraqi authori ties to answer for criminal conduct in Iraq would di rectly advance the important international mission em bodied by both the U.N. resolutions authorizing the mul tinational force and the MNF-I's arrangements with the Government of Iraq. Moreover, there not only is no statutory or treaty barrier to transferring Omar and Munaf to Iraqi authorities, but both United States law and the U.N. resolutions affirmatively authorize such a transfer.

The other aspects of the unprecedented injunction upheld in Omar are even more problematic under the principles discussed above and underscore the extent to which the courts below intruded on core Executive re sponsibilities and international comity. Indeed, the er ror of the district court's injunction is exposed by the court of appeals' felt need to hold that, if the MNF-I releases Omar, it may not provide Iraqi authorities with information that would enable them to arrest him. The court of appeals recognized that release from custody in Iraq without such an unprecedented order would be lit tle different from transfer in light of the Iraqi govern ment's obvious interest in detaining Omar. That fact should have underscored the unavailability of habeas and the inappropriateness of an injunction. Instead, the court of appeals took the extraordinary step of limiting the ability of a multinational force to notify Iraqi author ities of the location of the release of a dangerous individ ual in Iraq. That injunction in effect puts the United States courts in the position of secreting a fugitive from Iraqi justice, and it directly intrudes on core Executive interests and security concerns in an active theater of combat.

Likewise, there is no basis for preventing the Iraqi courts from trying Omar while he remains in MNF-I custody. If the Iraqi courts were to convict Omar, that would only underscore the absence of any basis for a United States court to interfere with Iraq's sovereign interest in bringing him to justice for offenses commit ted in Iraq. But the possibility that Omar will be con victed for his actions in Iraq provides no basis for an American court to interfere with such foreign proceed ings.

ARGUMENT

These cases present two distinct questions of excep tional importance to the separation of powers, the Na tion's conduct of foreign and military affairs, and the sovereign prerogative of foreign nations to try individu als for the commission of criminal offenses within their own borders. First, whether the United States courts have jurisdiction to review a habeas petition filed on behalf of a United States citizen held by a multinational force abroad pursuant to international authority. Sec ond, if such jurisdiction exists, whether the United States courts have the power to enjoin the transfer of such an individual from the multinational force to the foreign sovereign so that he may stand for prosecution or serve his punishment for offenses committed in that foreign land. As explained below, this Court should hold that the United States courts lack jurisdiction over such a habeas action. At a minimum, even if such jurisdiction exists, the Court should hold that the United States courts lack authority to enter the type of injunction up held by the court of appeals in the Omar case.

I. UNITED STATES COURTS LACK AUTHORITY TO RE VIEW THE HABEAS CLAIMS OF INDIVIDUALS HELD ABROAD BY A MULTINATIONAL FORCE PURSUANT TO INTERNATIONAL AUTHORITY

A. United States Courts Lack Jurisdiction In These Cases Under The Rule Of Hirota

The threshold jurisdictional question in these cases is governed by this Court's decision in Hirota, which establishes that United States courts lack jurisdiction to review the detention of individuals held abroad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force. Because individuals held pursuant to interna tional authority are not "in custody under or by color of the authority of the United States," the writ of habeas corpus does not extend to them. 28 U.S.C. 2241(c)(1).

1. In Hirota, this Court considered whether the "courts of the United States" (338 U.S. at 198) had juris diction to review petitions for writs of habeas corpus filed by Japanese citizens who were being held in Japan by a multinational force pursuant to international au thority. The habeas petitioners alleged that they were "in custody under and by color of the authority of the United States" and in violation of the Constitution and laws of the United States. Mot. for Leave to File Pet. for Writ of Habeas Corpus at 25-26, Hirota, supra (No. 239, Misc.) (Hirota Mot.). The petitioners were in the custody of United States military personnel abroad act ing as part of a multinational force-the Allied Powers. Specifically, the petitioners were held in the custody of the "Commanding General of the United States Eighth Army who held them pursuant to the orders of [General] MacArthur, Supreme Commander of the Allied Powers." Hirota, 338 U.S. at 199 (Douglas, J., concurring).

The Hirota petitioners were being "held in [such] custody pursuant to the judgment of a military tribunal in Japan." 338 U.S. at 198. The petitioners had been convicted by the International Military Tribunal for the Far East, a court established by General MacArthur acting "as an agent of the Allied Powers." Ibid.; id. at 199 (Douglas, J., concurring). Authorization to establish the tribunal came from an international body, the Far Eastern Commission. Id. at 206. After the Hirota peti tioners were convicted and sentenced by the tribunal, they appealed to General MacArthur, who declined to intervene in the judgment and directed the Command ing General of the Eighth Army to execute some of the petitioners.4

At all times, "the chain of command from the United States to the Supreme Commander [was] unbroken." Hirota, 338 U.S. at 207 (Douglas, J., concurring). Presi dent Truman had designated General MacArthur to be the Supreme Commander. Harry S. Truman, Directive to the Supreme Commander for the Allied Powers (Aug. 13, 1945), in Suppl. to Documentary App. at 4, Hirota, supra (No. 239, Misc.). And the Far Eastern Commis sion was required "to respect the chain of command from the United States Government to the Supreme Commander and the Supreme Commander's command of occupation forces." Hirota, 338 U.S. at 206 (Douglas, J., concurring) (internal quotation marks omitted).

In considering whether the Court had authority to review the habeas petitions at issue, the Court focused on the source of authority pursuant to which the peti tioners were being held. Because the Court was "satis fied that the tribunal sentencing these petitioners [was] not a tribunal of the United States," it held that "the courts of the United States ha[d] no power" to adjudi cate the habeas petitions. Hirota, 338 U.S. at 198. The facts that (1) the petitioners were being held in the im mediate custody of an American officer (acting as part of the multinational force), (2) the tribunal that con victed the petitioners had been established by a United States military officer under the direct command and control of the United States, and (3) the tribunal's rul ings were subject to modification by that same United States military officer did not alter the Court's conclu sion that jurisdiction was lacking. The crucial point, in the Court's view, was that, when General MacArthur established the relevant tribunal, he was "acting as" the Commander and agent of the Allied Powers, and there fore was acting under international authority (and not solely United States authority). Ibid.

As the District of Columbia Circuit observed shortly after Hirota was decided, the key to Hirota's jurisdic tional rule is the "source of [the] power" pursuant to which an individual is held. Flick v. Johnson, 174 F.2d 983, 984, cert. denied, 338 U.S. 879 (1949). That conclu sion squares with the text of the habeas statute, which provides, in pertinent part, that "[t]he writ of habeas corpus shall not extend to a prisoner unless * * * [h]e is in custody under or by color of the authority of the United States." 28 U.S.C. 2241(c)(1) (emphasis added). Because an individual who is held abroad pursuant to international authority (and not solely United States law) is not "in custody under or by color of the authority of the United States," the writ of habeas corpus does not extend to such a detainee.

The habeas corpus statute also states that the writ does not extend to a prisoner unless "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2241(c)(3). That provision, however, presumes that an individual is "in custody" under United States-not international-authority. Indeed, the Hirota petitioners alleged that they were being held "in custody in violation of the constitution, treaties, international engagements, and laws of the United States." Hirota Mot. 26. Yet in Hirota this Court held that jurisdiction was lacking because they were held pursuant to a judgment of an international tribunal. 338 U.S. at 198. A contrary construction would open the United States courts to habeas claims filed by or on behalf of individuals held the world over pursuant to foreign judgments or laws.

2. The basic teaching of Hirota calls for dismissal of these cases. Here as in Hirota, the habeas petitioners are in the physical custody of United States military officers, but those officers are acting as part of a multi national force under international authority and holding the petitioners pursuant to a determination by a tribunal convened under such international authority.

At the request of the Government of Iraq (see p. 2, supra), the U.N. authorized the multinational force to operate in Iraq and to "take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to" U.N. Resolution 1546. 07-394 Pet. App. 74a. As one of those letters explains, that mandate includes "internment [of individuals within Iraq] where this is necessary for im perative reasons of security." Id. at 86a. Under the authority of the U.N. resolutions, the MNF-I agreed with the Government of Iraq that the MNF-I would "maintain[] physical custody of detainees while their cases are being heard by the CCCI." Id. at 106a.

Omar and Munaf are currently held under that au thority pursuant to the determinations of three-member MNF-I tribunals-acting pursuant to such international authority-that they are security internees who should be detained for imperative security reasons. 07-394 Pet. App. 103a; J.A. 44, 48. That determination is a sufficient basis for their detention, and any challenge to that de termination or their detention pursuant to international authority comes within the rule of Hirota.5 In that re spect, they are like thousands of other security intern ees held by the MNF-I. In addition, Munaf is also being held pursuant to his criminal conviction by an Iraqi court. See J.A. 44, 48, 61. Thus, like the habeas peti tioners in Hirota, Omar and Munaf are being held by a multinational force abroad pursuant to international authority. See J.A. 43; 07-394 Pet. App. 101a.

While the United States is, to say the least, a vital component of the MNF-I, that was no less true of the United States forces operating as part of the Allied Pow ers in Japan. See Hirota, 338 U.S. at 207 (Douglas, J., concurring) ("[T]hough the tribunal is dominated by American influence, it is nonetheless international in character."). 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. The courts below did not identify any basis to countermand that quintessential foreign affairs judgment and disregard the MNF-I's international origin and authority.

In addition, while the multinational force-pursuant to its U.N. mandate-operates subject to a unified American command, and while the U.S. chain of com mand ultimately runs to the President of the United States, that was no less true in Hirota. As discussed, the multinational force in Hirota operated under the "[s]upreme" command of General MacArthur, and the tribunal pursuant to whose judgment the habeas peti tioners were being held had been "set up by General MacArthur." 338 U.S. at 198. Here, as in Hirota, how ever, the key is that the American forces that command and in part comprise the MNF-I are not operating solely under United States authority, but rather "as the agent of" a multinational force that was established by and operates pursuant to international authority. Ibid.6

B. The Jurisdictional Limitation Recognized In Hirota Is Supported By Core Separation-Of-Powers Principles

The restraint called for by Hirota is supported by fundamental separation-of-powers principles. As Jus tice Jackson observed as to Hirota, "the issues here * * * involve decision of war crimes issues secondarily, for primarily the decision will establish or deny that this Court has the power to review exercise of military power abroad and the President's conduct of external affairs of our Government." Hirota v. MacArthur, 335 U.S. 876, 879-880 (1948) (statement regarding setting motions for oral argument). Here as in Hirota, the challenged ac tions are not of the Executive acting alone, but those of the United States acting as part of a multinational force under international authority, and in partnership with a local foreign sovereign that unquestionably has jurisdic tion to detain persons within its own borders pursuant to its own laws to enhance national security.

1. The Constitution grants the President authority to enter into executive agreements with allied foreign nations regarding the conduct of war. See, e.g., Ameri can Ins. Ass'n v. Garamendi, 539 U.S. 396, 415 (2004). Pursuant to that authority-and consistent with a statu tory framework establishing the parameters for the United States' participation in the U.N., see 22 U.S.C. 287 et seq.-the Executive agreed to participate in the MNF-I, and also agreed, in conjunction with U.N. Reso lution 1546, that the MNF-I would undertake "intern ment where this is necessary for imperative reasons of security." 07-394 Pet. App. 86a. The MNF-I, including the United States, then entered into a further agree ment with Iraq to hold the detainees that were referred for investigation and prosecution before the Iraqi courts during the Iraqi judicial proceedings. J.A. 48.

The habeas petitions in this case ask the United States courts to review determinations made by the mul tinational force that was authorized by the U.N. to carry out those international commitments in an active combat zone. "Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them." Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004) (plurality opinion); see Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). Moreover, Con gress authorized the President "to use the Armed Forces of the United States as he determines to be nec essary and appropriate in order to * * * enforce all relevant United Nations Security Council resolutions regarding Iraq." Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107- 243, § (3)(a), 116 Stat. 1501. Thus, the President's con stitutional authority to enter into the relevant agree ments "is at its maximum, for it includes all that he pos sesses in his own right plus all that Congress can dele gate." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

The exercise of habeas jurisdiction in these cases would interfere with the Executive Branch's interna tional commitments, as well as its ability to carry out its military and foreign policy objectives. As Justice Jack son observed in Hirota, "[f]or this Court now to call up these cases for judicial review under exclusively Ameri can law can only be regarded as a warning to our associ ates in the trials that no commitment of the President or of the military authorities, even in matters such as these, has finality or validity under our form of govern ment until it has the approval of this Court." 335 U.S. at 878 (statement respecting oral argument). "And since the Court's approval or disapproval cannot be known until after the event-usually long after-it would sub stantially handicap our country in asking other nations to rely upon the word or act of the President in affairs which only he is competent to conduct." Ibid.; see Charles Fairman, Some New Problems of the Constitu tion Following the Flag, 1 Stan. L. Rev. 587, 644 (1949) (It will not promote the efforts "to work together [with allied nations] for joint defense * * * to foster the idea that an American commander, even when exercising an Allied trust, works under some vague supervision by the United States Supreme Court.").

Other nations may inevitably take offense if Ameri can courts were to assume the authority to review the determinations of international bodies in which United States forces or personnel participate abroad. And if the United States courts were to assume this authority, there is no reason why the courts of other nations could not do so, potentially subjecting decisions of multina tional bodies like the MNF-I, in which some 27 nations participate, to review and inconsistent judgments in multiple fora worldwide. As the government observed nearly 60 years ago in Hirota, when such joint interna tional endeavors were far less common, "[t]he full reach of any assumption by this Court of competence in these matters cannot now be foreseen, but we emphasize the government's deep concern lest irreparable damage be done, and its hope for a complete and prompt termina tion of these efforts by petitioners to hamper and defeat vital international engagements." Br. in Opp. to Mots. at 74, Hirota, supra (No. 239, Misc.).

As the district court in Munaf observed, "no court in our country's history, other than [in Omar], has ever found habeas corpus jurisdiction over a multinational force comprised of the United States acting jointly with its allies overseas." 06-1666 Pet. App. 37. Given the potentially grave separation-of-powers and international repercussions of exercising such jurisdiction, this Court should insist on a clear showing of jurisdiction to justify such an unprecedented and far-reaching exercise of American judicial authority. The habeas petitioners in these cases have failed to make such a showing.

2. These concerns are magnified by the fact that the habeas petitioners in these cases ask the United States courts to review decisions made, not unilaterally by the United States, but by the MNF-I or the Iraqi govern ment. MNF-I panels determined that Omar and Munaf present grave risks to the security of Iraq and should be referred for investigation and prosecution by the Iraqi courts. Moreover, the Iraqi courts found Munaf guilty of serious criminal conduct in Iraq. Even if any habeas relief awarded by the courts in these cases technically were styled to run solely against the United States, the actions of the MNF-I and the Government of Iraq would be impugned, and their authority infringed, by such re lief. See Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1213 (D.C. Cir. 1989).

Moreover, Omar and Munaf have made clear that they do not seek relief solely vis-a-vis the United States. In Omar, the court of appeals affirmed an injunction against the United States and all those acting in concert with it, including the MNF-I. 07-394 Pet. App. 27a, 59a. That injunction reflects the reality that the United States is not operating unilaterally here. But that real ity should have led to the recognition that Hirota was applicable, not to a broader, more problematic injunc tion. Moreover, both Omar and Munaf have sought an injunction requiring their safe passage out of Iraq and return to the United States. J.A. 40, 123. Thus, they have made clear that mere release from their custody by United States forces acting as part of the MNF-I would not redress their claims; instead, they seek broader pro tection from the MNF-I and the Iraqi government. Re view of these habeas petitions would therefore directly infringe the interests of other sovereigns, viz., the Gov ernment of Iraq and the 26 other nations participating in the MNF-I.

3. Nor is it clear what standards would apply to the determinations that Omar and Munaf seek. Under the U.N. resolutions, the MNF-I has authority to detain individuals where "necessary for imperative reasons of security." 07-394 Pet. App. 86a. That is not a standard the United States courts are accustomed to considering, and it turns on precisely the type of security judgments that are constitutionally committed to the Commander in Chief. See, e.g., Department of the Navy v. Egan, 484 U.S. 518, 528-530 (1988). Any effort to replace that U.N.-adopted standard with a new United States stan dard would raise its own host of issues, especially con sidering the novelty of the habeas claims at issue here.

C. Jurisdiction Does Not Turn On Whether A Habeas Peti tioner Has Been Convicted By A Foreign Tribunal

The court of appeals erred in determining that Hi rota's jurisdictional holding is limited to individuals who have been convicted of criminal offenses by a foreign or international tribunal. See 06-1666 Pet. App. 4; 07-394 Pet. App. 12a. The court of appeals recognized that both Omar and Munaf are being held abroad by an interna tional force pursuant to international authority. 06-1666 Pet. App. 4; 07-394 Pet. App. 11a. But the court held that the district court could properly exercise jurisdic tion over Omar's petition because, unlike Munaf, he has not been convicted by an Iraqi criminal court. 06-1666 Pet. App. 3-4; 07-394 Pet. App. 12a. To "preserv[e]" that purported jurisdiction in Omar, the court of appeals then upheld an injunction that prevents the Iraqi courts from trying Omar. Id. at 26a, 27a. In other words, the court of appeals viewed Hirota as establishing a rule that bars review of detention by a multinational force once related foreign or international criminal proceed ings reach judgment, but not before then.

1. As Munaf has argued (06-1666 Pet. 19), Hirota does not, and could not plausibly, rest on such a distinc tion. Instead, as discussed above, Hirota relied on the source of authority under which the petitioners were held, not on the existence of criminal convictions. See pp. 18-21, supra. While a foreign criminal conviction provides an international source of authority for cus tody, nothing in Hirota suggests that convictions are the only possible source of such authority. Individual who are held under international authority are fully subject to the Hirota rule (regardless of whether they are re ferred for criminal proceedings for their actions). And that is particularly true where, as here, the individuals are being held pursuant to a determination by a tribunal convened by the multinational force-acting under in ternational authority-that they present security con cerns and that they should be held pending further crim inal proceedings by a foreign sovereign.

2. The court of appeals' re-conceptualization of Hi rota is difficult to square with "the longstanding princi ple that 'the jurisdiction of the Court depends upon the state of things at the time of the action brought.'" Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (quoting Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)); accord, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). Under the court of appeals' ap proach, the district court had jurisdiction when Munaf filed his habeas petition, but was divested of that juris diction when the CCCI convicted him.7

What is more, under the Omar court's view, if juris diction is present when a petition is filed because collat eral foreign criminal proceedings have not yet been initi ated or resulted in a conviction, then a district court may enter an injunction to prevent those proceedings from going forward. The Omar rule thus provides district courts with a perverse incentive to intervene precipi tously and "preserve" their asserted jurisdiction by en tering injunctions that interfere with the ability of for eign courts to exercise their undoubted jurisdiction over persons within their borders, as the district court did in Omar. As discussed below, the district court had no authority to enter such an injunction. See pp. 36-51, infra. But the very prospect of such injunctions under scores the problems with a rule that makes the existence of jurisdiction in this context turn on whether the ha beas petition is filed before or after the conclusion of foreign criminal proceedings.

3. The court of appeals asserted in Omar that the fact of a conviction is dispositive because it means that "some form of judicial process has occurred." 07-394 Pet. App. 14a. But Hirota in no way turns on the fact or adequacy of some alternative process. Hirota is silent as to what process the petitioners received. 338 U.S. at 198. But even more fundamentally, Hirota addresses circumstances where the basic complaint is that the mul tinational or foreign tribunal-whether completed or not-is an inadequate substitute for the due process provided by United States courts. And, of course, the whole thrust of Hirota is that United States courts are not well-positioned to make those pronouncements. See also Neely v. Henkel, 180 U.S. 109, 123 (1901). Indeed, one of the Hirota petitioners' central allegations was that they were denied due process by the international tribunal, but the Hirota decision makes no mention of that assertion, and places no reliance on it. See, e.g., Pet. Br. at 16, 20, Hirota, supra (No. 239, Misc.).

Finally, the degree of process received-whatever its impact on the merits-has nothing to do with the exis tence of jurisdiction. In contrast, the determination whether a prisoner is in custody under the authority of the United States, or of a multinational entity, goes di rectly to the question of habeas jurisdiction. See 28 U.S.C. 2241(c)(1). And, of course, a concern with ensur ing that judicial process occurs provides no basis what soever for enjoining Omar's presentation to an Iraqi court for that very process.

D. The Hirota Rule Operates Independent Of Citizenship

Omar and Munaf argue (06-1666 Pet. 12-16; 07-394 Br. in Opp. 14-18) that United States courts have juris diction over their habeas petitions because they are United States citizens. But, as noted, the critical focus in Hirota was on the source of detention authority. Hirota turned no more on citizenship than on the com pletion of the foreign or international proceedings. To be sure, because the habeas petitioners in Hirota were aliens, the Court's decision does not specifically address whether its jurisdictional rule applies to citizens. But the failure of Hirota to focus on the petitioners' status as aliens-and failure to reserve the question of citizen- detainees-only underscores that the fact that mattered in Hirota was not citizenship, but the fact that the peti tioners were held under international authority. Citi zenship does not change the source of authority under which a person is held. Either the person is held under international authority, or he is not. Thus, while the Hirota Court did not address the issue, Justice Douglas recognized in his concurring opinion that the rationale of Hirota does not lend itself to a citizenship exception. See 338 U.S. at 202-203, 205. So did the court of appeals here. 06-1666 Pet. App. 4; see 07-394 Pet. App. 12a.

1. Omar and Munaf argue that "citizenship is 'a head of jurisdiction.'" 07-394 Br. in Opp. 22 (quoting Johnson v. Eisentrager, 339 U.S. 763, 769 (1950)). But citizenship itself does not automatically confer habeas jurisdiction. If it did, the federal courts would be open on habeas to claims of United States citizens being held under the authority of any non-American tribunal. It is well set tled, however, that federal courts may not entertain claims by United States citizens incarcerated by foreign nations under foreign law. See, e.g., United States ex rel. Keefe v. Dulles, 222 F.2d 390, 391-392 (D.C. Cir. 1954), cert. denied, 348 U.S. 952 (1955). Indeed, habeas courts lack authority over cases involving American citi zens detained under the authority of foreign convictions even when the petitioners are in the actual custody of the United States because they are serving their sen tences here. See, e.g., Bishop v. Reno, 210 F.3d 1295 (11th Cir.), cert. denied, 531 U.S. 897 (2000).

Neither the habeas statute nor the Constitution con fers jurisdiction in the circumstances here. The habeas statute does not provide a separate right to habeas for citizens that would override the result in Hirota. And whatever the reach of the Constitution in other circum stances, in Neely, this Court held that "the provision[] of the Federal Constitution relating to the writ of habeas corpus * * * ha[s] no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country." 180 U.S. at 122. Neely in volved crimes committed by an American citizen in Cuba when the United States was the sole occupying force of that country; its holding applies a fortiori to this case, where the crimes were committed against the sovereign government of Iraq and the United States is participat ing in a multinational force comprised of 27 nations.

2. The cases on which Munaf relies (06-1666 Pet. 13) for the proposition that citizenship is a font of jurisdic tion are inapposite because they involve "petitioners * * * in the custody of the United States alone, in its capacity as the United States, and not by any multina tional force" acting under international authority. 06- 1666 Pet. App. 29. In other words, the cases relied upon by Munaf do not involve the critical factor that makes Hirota applicable; unlike the petitioners in Hirota and these two cases, the petitioners in the cases cited by Munaf were being held "in custody under or by color of the authority of the United States," 28 U.S.C. 2241(c)(1), and not pursuant to international authority.

In Eisentrager, for example, the habeas petitioners (who were not United States citizens) were indisputably being held under the exclusive authority of the United States. Indeed, this Court emphasized at the outset of its decision that "[t]he proceeding [pursuant to which the habeas petitioners were detained] was conducted wholly under American auspices." 339 U.S. at 766.8

Similarly, in Madsen v. Kinsella, 343 U.S. 341 (1952), the petitioner was held in West Virginia following her conviction by the United States Courts of the Allied High Commission for Germany. Id. at 343-345, 357. The Madsen court explained that the United States Courts of the Allied High Commission for Germany were "in the nature of military commissions conforming to the Con stitution and laws of the United States" that "derived their authority from the President as occupation courts, or tribunals in the nature of military commissions, in areas still occupied by United States troops." Id. at 356, 357 (emphasis omitted); see id. at 358 (noting that the judges' authority derived from "the President"); id. at 371-372 (Black, J., dissenting). Other cases relied on by Omar and Munaf (e.g., 06-1666 Pet. 13) similarly involve United States court martials undertaken pursuant to United States authority and law. See McElroy v. Guag liardo, 361 U.S. 281 (1960); United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955); Burns v. Wilson, 346 U.S. 137 (1953) (plurality opinion).

Nor do this Court's recent decisions in Hamdi and Rasul v. Bush, 542 U.S. 466, 481 (2004) provide "grounds for questioning Hirota's continued vitality." 06-1666 Pet. App. 6. Neither Hamdi nor Rasul ad dresses the issue decided in Hirota or even mentions that opinion. In Hamdi, jurisdiction was undisputed because the petitioner challenged his detention by Uni ted States forces acting solely under domestic authority at the Naval Brig in South Carolina, and the habeas ac tion was specifically limited to the prisoner's detention in the United States by United States forces alone. See 542 U.S. at 511, 525 (plurality opinion).

Rasul is similarly inapposite. The detainees in Rasul were being held by United States forces acting solely under United States authority. Thus, there was no as sertion in that case that the United States military offi cers detaining the petitioners in the U.S. Navy base in Guantanamo Bay, Cuba, were acting under international authority. Indeed, this Court determined that those officers were acting in a territory over which the United States exercises "complete jurisdiction and control." 542 U.S. at 480 (citation omitted); see id. at 481-482. The Court also undercut the distinction Omar and Mu naf seek to draw here by noting that the habeas statute "draws no distinction between Americans and aliens held in federal custody." Id. at 481 (emphasis added).

3. While Hirota's source-of-authority rationale does not lend itself to a citizenship exception, the separation- of-powers concerns that support Hirota nevertheless would counsel strongly in favor of limiting any overrul ing of Hirota to the context of petitions brought by citi zens. As a practical matter, limiting jurisdiction in these circumstances to habeas claims filed on behalf of citizens would limit the scope of disruption to the ongoing activi ties of the MNF-I and the Government of Iraq because the vast majority of the detainees held by the MNF-I are aliens.9 Nevertheless, as discussed above, under a proper application of Hirota, citizenship does not confer jurisdiction over the habeas petitions at issue.

II. UNITED STATES COURTS LACK AUTHORITY TO BLOCK THE MNF-I FROM SURRENDERING CUSTODY OF OMAR AND MUNAF TO IRAQI AUTHORITIES

After finding jurisdiction, the court of appeals in Omar upheld an injunction that bars the federal parties, and those acting in concert with them, from "remov[ing] [Omar] from United States or MNF-I custody." 07-394 Pet. App. 55a, 59a. Even if this Court overrules Hirota and holds that the court properly exercised jurisdiction, an injunction against Omar's release from the very cus tody that the court of appeals viewed as giving it juris diction would be indefensible under longstanding habeas practice because release from custody is the traditional purpose of the writ. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("It is clear * * * that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal cus tody."). Indeed, Omar sought, inter alia, that very re lief in this case. J.A. 123. The very prospect of a court effectively enjoining a prisoner's release from custody turns the basic function of the Great Writ on its head.

Although the court of appeals recognized that the district court could not lawfully bar Omar's release from custody vel non, it re-characterized the injunction against his release as one against (1) transferring Omar to Iraqi custody, (2) sharing with the Iraqi government details concerning any decision to release him, and (3) allowing him to appear before the Iraqi courts to answer for alleged crimes committed in Iraq. See 07-394 Pet. App. 20a, 23a, 25a. Those extraordinary restrictions on the handling of a security internee in a foreign combat zone are even less justifiable than the district court's ban on Omar's outright release. The inability of the tra ditional habeas remedy to provide meaningful re lief-because Iraqi authorities would exercise their sov ereignty to take custody over someone who poses a secu rity risk and has violated the domestic criminal laws of Iraq, which is precisely the course Omar seeks to evade-should have cautioned against granting habeas relief. Instead, it impelled the court of appeals to inter fere even more deeply in the relationship between the United States military, the MNF-I, and the Iraqi gov ernment.

Munaf's request for an analogous injunction is even more inappropriate. Because the Iraqi courts have al ready convicted Munaf (one of Iraq's own citizens), his request for an injunction against his transfer to Iraqi custody not only raises the same international comity and separation-of-powers concerns as the unprece dented injunction upheld in Omar, but amounts to an impermissible collateral attack on his Iraqi conviction. In effect, the habeas petitioners seek an injunction from the United States courts that would provide them with a right to be a fugitive from Iraqi justice while in Iraq for crimes committed in Iraq. Nothing in this Court's cases, or settled habeas practice, supports that result.

A. The District Court Had No Basis To Frustrate Iraq's Criminal Jurisdiction Over Persons Within Its Borders

1. Nations have criminal jurisdiction over persons within their borders, including United States citi zens, unless they have waived that jurisdiction

This Court has long recognized that a "sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdic tion." Wilson, 354 U.S. at 529; see Kinsella v. Krueger, 351 U.S. 470, 479 (1956) (nations have a "sovereign right to try and punish for offenses committed within their borders," generally including offenses committed by "American servicemen and their dependents," unless they "have relinquished [that] jurisdiction"); Reid v. Covert, 354 U.S. 1, 15 n.29 (1957) (plurality opinion) ("[A] foreign nation has plenary criminal jurisdiction, of course, over all Americans * * * who commit offenses against its laws within its territory."). That principle dates back at least to Chief Justice Marshall's observa tion in The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 136 (1812), that "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute."

As Judge Randolph recognized, this Court's decision in Wilson invoking that universal principle is "conclu sive" (06-1666 Pet. App. 8) here. In Wilson, this Court reversed a district court injunction-"very much like the one at issue here," 07-394 Pet. App. 36a n.5 (Brown, J., dissenting in part)-barring the United States military from transferring an American soldier (Girard) to Japa nese authorities in Japan to face trial for the alleged shooting of a civilian during a training exercise in Japan. 354 U.S. at 525-526. The Court held that Japan "has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or im pliedly consents to surrender its jurisdiction." Id. at 529. Because Japan had not surrendered that jurisdic tion, a unanimous Court found "no constitutional or stat utory barrier" to the Army's transfer of Girard to Japa nese authorities to face trial, and therefore set aside the injunction against Girard's transfer. Id. at 530.

No treaty or statute bars the transfer of Munaf or Omar to Iraqi authority. Nor can Omar or Munaf point to any relevant waiver of jurisdiction by Iraq. Accord ingly, Wilson controls here and requires that the Omar injunction be set aside. Indeed, this case presents a more compelling situation than Wilson for setting aside the injunction against Omar's transfer to Iraqi authori ties. Unlike Girard, who was stationed in Japan when he committed the alleged offense, Omar voluntarily trav eled to Iraq and committed alleged criminal offenses there on his own time. Moreover, unlike Girard, Omar was captured in an active combat zone while harboring an Iraqi insurgent and four Jordanian fighters, and while possessing weapons and improvised explosive de vice- making materials. See 07-394 Pet. App. 103a. In addition, unlike Girard, Munaf has already been con victed by an Iraqi court of criminal conduct in Iraq. 06- 1666 Pet. App. 2.10

2. The Executive does not need any affirmative statu tory or treaty authorization to relinquish custody of Omar or Munaf in Iraq

Omar argues (07-394 Br. in Opp. 33-34) that the United States cannot release him to Iraqi custody with out statutory or treaty authorization. Even in peace time, however, there is no such requirement. As Wilson confirms, United States law simply does not obligate the United States (or the MNF-I) to shelter alleged crimi nals in Iraq from the Iraqi justice system, much less convicted criminals like Munaf. And even if the United States needed express authorization to defer to Iraq's criminal jurisdiction within its own borders, the U.N. resolutions, coupled with Congress's direction to enforce those resolutions, would provide it. Omar's contrary argument-which appears to apply equally to citizens and non-citizens alike-cannot be squared with either Iraq's sovereign prerogatives or the Executive's discre tion over such sensitive foreign policy matters, and is tantamount to claiming a right to be a fugitive from Iraqi justice in Iraq for conduct committed there.

a. This Court has held that statutory or treaty au thorization is generally required before the United States may extradite a person from the United States to a foreign country. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8-9 (1936); 18 U.S.C. 3184. Thus, if Omar and Munaf were in the United States, they pre sumably could be extradited only pursuant to such au thorization. See Extradition Treaty, done June 7, 1934, U.S.-Iraq, 49 Stat. 3380.

As Judge Brown explained, however, the transfer of a person within a foreign country is not an extradition, and involves different considerations. 07-394 Pet. App. 35a. "Extradition is the process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial and punishment." 6 Marjo rie M. Whiteman, Digest of International Law 727 (1968) (Whiteman) (emphasis added); accord 4 Green Haywood Hackworth, Digest of International Law § 304, at 1 (1942). Consistent with that understanding, our extradition treaty with Iraq, like many other extra dition treaties, authorizes the surrender of "any person charged or convicted of [certain crimes] committed within the jurisdiction of one of the High Contracting Parties * * * and who shall be found within the terri tories of the other High Contracting Party." Art. I, 49 Stat. 3380 (emphasis added); see 6 Whiteman 727-728; 1 John Bassett Moore, A Treatise on Extradition and Interstate Rendition 139-140 (1891). Such treaties are not so limited because the countries perversely wanted to authorize the extradition of fugitives across national borders, but not to permit the surrender of fugitives within a country. Rather, they are so limited because the United States' surrender of a fugitive within a for eign country is not an extradition, and does not require any treaty authorization at all.

Thus, the United States statute governing extradi tion to foreign countries-entitled "Fugitives from for eign country to United States"-applies by its terms only to persons in the United States. 18 U.S.C. 3184. That statute authorizes a United States court to com mence extradition proceedings by issuing a warrant if the person is "found within [the court's] jurisdiction," or "if the whereabouts within the United States of the per son charged are not known or, if there is reason to be lieve that the person will shortly enter the United States." Ibid. The court can then consider evidence that could be "received for similar purposes by the tri bunals of the foreign country from which the accused party shall have escaped." 18 U.S.C. 3190. The reason those extradition statutes do not apply to transfers of custody within a foreign country is that such transfers are not extraditions, and do not require statutory or treaty authorization or judicial approval.

b. Transfer of custody within a country raises funda mentally different issues from extradition. In the extra dition context, "the person in question is in the re quested state either because he believes refuge can be found there or because of other circumstances." M. Cherif Bassiouni, International Extradition: United States Law and Practice 30-31 (4th ed. 2002) (Interna tional Extradition). Historically, the surrender of such a person to a foreign state "was deemed an exceptional measure running against the traditions of asylum and hospitality." Id. at 31. As cases like Wilson reflect, however, that historical tradition is reversed when the person is already in the country that wishes to arrest him for conduct there. In that circumstance, the United States may surrender the fugitive unless there is a posi tive prohibition against doing so. See pp. 38-39, supra.

As a practical matter, moreover, Omar has no legal right to block his release from custody, and "[w]here, as here, the prisoner is physically in the territory of the foreign sovereign that seeks to make the arrest, release is tantamount to transfer." 07-394 Pet. App. 36a-37a (Brown, J., dissenting in part); see pp. 36-37, supra. Indeed, when the United States has custody of a person in a foreign country, it is a misnomer to refer to the United States "transferring" the person to that coun try's custody. Rather, the foreign country presump tively has a sovereign right to arrest the person within its borders pursuant to its laws, and the United States (including its courts) generally lacks authority to inter fere with that arrest. See Republic of the Phillippines v. Westinghouse Elec. Corp., 43 F.3d 65, 79 (3d Cir. 1994).

c. Settled practice with status-of-forces agreements confirms those points. As noted, each nation generally has criminal jurisdiction over persons, including foreign military personnel, within its borders. Kinsella, 351 U.S. at 479. If the United States has military forces stationed in a foreign country, however, it generally en ters into a status-of-forces agreement that includes pro visions concerning criminal jurisdiction over United States personnel. While the terms of those agreements vary, the foreign country typically permits the United States to exercise primary criminal jurisdiction over alleged offenses committed by its own armed forces in the performance of official duty, but the foreign country typically retains primary criminal jurisdiction over other offenses. International Extradition 93. Either state may, however, cede its jurisdiction over a particular matter to the other state, ibid., and if the United States cedes its jurisdiction, it can surrender custody of the individual to the foreign sovereign, see Wilson, 354 U.S. at 529-530. The "[s]urrender of American servicemen for foreign trial pursuant to status-of-forces agreements has received consistent judicial approval." Holmes v. Laird, 459 F.2d 1121, 1216 n.32 (D.C. Cir.), cert. denied, 409 U.S. 869 (1972); see, e.g., Wilson, 354 U.S. at 529- 530; Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971); United States ex rel. Stone v. Robinson, 431 F.2d 548 (3d Cir. 1970); Cozart v. Wilson, 236 F.2d 732 (D.C. Cir.), vacated as moot, 352 U.S. 884 (1956).

Omar has argued (07-394 Br. in Opp. 33) that the executive agreement in Wilson was "signed pursuant to a * * * treaty." The treaty, however, simply autho rized the Executive to enter agreements "concerning '[t]he conditions which shall govern the disposition of armed forces of the United States of America in and about Japan.'" Wilson, 354 U.S. at 526-527 (quoting the treaty). That general authorization did not specifically permit the surrender of Americans to Japanese custody. No such authorization was needed because, as the Dis trict of Columbia Circuit has explained, Japan already had the sovereign right to arrest, prosecute, and punish Americans in its country for violation of its laws. Co zart, 236 F.2d at 732, 733. Thus, the status-of-forces agreement "actually is a Japanese cession to the United States of criminal jurisdiction" to the extent that it per mits the United States to exercise jurisdiction in some cases. Robinson, 431 F.2d at 550 n.2.

While the history and effect of status-of-forces agreements supports the conclusion that foreign sover eigns have jurisdiction over individuals who commit criminal offenses within their borders, those agreements are also designed to deal with the situation where for eign nations allow the armed forces of another nation to enter their borders and where the foreign nation seeks to provide protection for its own troops. This case does not involve members of the United States military who have committed criminal offenses in Iraq, or members of another nation's armed forces who were legitimately stationed in Iraq, but rather individuals who voluntarily traveled to Iraq and committed serious criminal offenses there. As the District of Columbia Circuit has observed, a local foreign sovereign's exercise of criminal jurisdic tion over such individuals is "indubitably * * * appro priate." Holmes, 459 F.2d at 1216.

d. In any event, even if statutory authorization were required, Congress provided it by authorizing the Presi dent "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to * * * enforce all relevant United Nations Security Council resolutions regarding Iraq." Pub. L. No. 107- 243, § (3)(a), 116 Stat. 1501. Those resolutions call on the MNF-I to establish a security partnership with the Government of Iraq and to coordinate with it on matters of security. See pp. 2-3, supra. As Judge Randolph rec ognized, that provides any authority needed for United States forces, acting as part of the MNF-I, to transfer individuals determined to be security internees within Iraq to Iraqi custody. 06-1666 Pet. App. 9. The author ity of United States forces to operate in Iraq, and to hold security internees on behalf of the MNF-I or the Iraqi government, necessarily include any authority needed to transfer detainees to Iraqi authorities.

3. Iraq has sovereign discretion to establish modes of trial and punishment for offenses within its borders

Omar has argued (Omar C.A. Br. 39) that he would be deprived of due process by Iraqi authorities. That contention indicates that he seeks to use the United States courts improperly to collaterally attack foreign proceedings, but it provides no basis for enjoining his transfer to Iraqi custody. "When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States." Neely, 180 U.S. at 123; accord Holmes, 459 F.2d at 1219. That rule reflects "international co mity [and] respect for the sovereignty of foreign nations on their own territory." W.S. Kirkpatrick & Co. v. Envi ronmental Tectonics Corp., Int'l, 493 U.S. 400, 408 (1990). "The interests of international comity are ill- served by requiring a foreign nation * * * to satisfy a United States district judge concerning the fairness of its laws and the manner in which they are enforced." Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990).

Even in the extradition context, "under what is called the 'rule of non-inquiry' * * * courts in this country refrain from examining the penal systems of requesting nations, leaving to the Secretary of State determinations of whether the defendant is likely to be treated hu manely." Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997); see, e.g., United States v. Kin-Hong, 110 F.3d 103, 110-111 (1st Cir. 1997). Thus, for example, courts will not consider evidence regarding the requesting coun try's "law enforcement procedures and its treatment of prisoners." Ahmad, 910 F.2d at 1067. Rather, "it is the role of the Secretary of State, not the courts, to deter mine whether extradition should be denied on humani tarian grounds or on account of the treatment that the fugitive is likely to receive upon his return to the re questing state." Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006); accord In re Requested Extradition of Smyth, 61 F.3d 711, 714 (9th Cir. 1995), amended by 73 F.3d 887 (9th Cir.), cert. denied, 518 U.S. 1022 (1996).

The concerns underlying the rule of non-inquiry are even stronger here than in the extradition context, be cause Omar is already in Iraq and he therefore has no legal right to evade Iraqi jurisdiction. Moreover, the United States has a unique relationship with the Iraqi justice system, as the United States is working closely with the Government of Iraq to rebuild that country's vital governmental institutions, including its courts. For the courts of the United States to reach out to determine that Iraqi courts are not acceptable fora for the trial of United States citizens would fail to accord Iraq's courts the respect they are due under the principles of interna tional comity on which Neely rests.

Omar has asserted (07-394 Br. in Opp. 6-7) that he would be tortured if he were transferred to the Iraqi government. That allegation provides no basis for a United States court to enjoin his transfer, either. The United States would object to the MNF-I's transfer of Omar or Munaf to Iraqi custody if it believed that they would likely be tortured. Even in the extradition con text, however, that is fundamentally a foreign affairs determination under the rule of non-inquiry, based in part on the Executive's assessment of the foreign coun try's legal system and, when the Executive considers it necessary, its ability to obtain foreign assurances it con siders reliable-matters the Executive is uniquely well- positioned to consider. See 07-394 Pet App. 38a n.6 (Brown, J., dissenting in part).

B. The Injunction Against Providing Information To Iraq Or Permitting Iraq To Try Omar Is Especially Improper

The other aspects of the district court's unprece dented injunction in Omar are even more problematic under the principles discussed above and underscore the extent to which the courts have intruded on core Execu tive responsibilities and international comity.

1. The court of appeals ruled that, if the MNF-I re leases Omar, it may not provide Iraqi authorities with information that would enable them to arrest Omar. 07- 394 Pet. App. 22a-23a. As Judge Brown observed, "in formation sharing among sovereigns regarding the loca tion of persons subject to arrest is a common and desir able practice, particularly in a situation like that in pres ent-day Iraq." Id. at 33a. Such information sharing is critical to combating international terrorism and allow ing nations to exercise their most basic police powers to maintain security. If the authorities of any nation had information that an individual the United States deemed a dangerous criminal was about to enter the United States, the United States would want that information and would try to reciprocate. Such information sharing is at a particular premium in light of the situation on the ground in Iraq. An order enjoining such coordination and communication is an extraordinary incursion on the Commander in Chief's powers and an extraordinary affront to the sovereign prerogatives of Iraq.

That is all the more so here, where, as Judge Brown observed, the injunction has "the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture." 07-394 Pet. App. 34a. The MNF-I detained Omar precisely because he is a confirmed secu rity threat who committed hostile and war-like acts in an active combat zone. Simply releasing him in an area of ongoing combat, without advance notice to the local sov ereign, could have grave diplomatic and practical conse quences.

The court of appeals rationalized the injunction against communications in a combat zone on the theory that Omar's release would otherwise amount to his transfer to Iraqi authorities. 07-394 Pet. App. 23a. That may be true, but the court of appeals drew the wrong conclusion. The sovereignty of Iraq and the ability of United States forces to coordinate with Iraqi authorities means that the traditional habeas remedy of release would amount to the kind of transfer Omar seeks to en join. But that only underscores the continuing correct ness of the rule of Hirota and the difficulty of employing habeas in this context. That difficulty would not justify attempting to create an effective "release" through the absurd requirement that the MNF-I must, for example, release Omar in the dead of night with an eight-hours' head start before notifying Iraqi authorities that it had released an allegedly dangerous criminal (or, in Munaf's case, a convicted criminal) within its borders.

2. The court of appeals compounded its error by directing that Omar not be brought before the CCCI for trial, even if he remained in MNF-I custody. 07-394 Pet. App. 25a. Even if a United States court could prevent Iraq from assuming custody of Omar, there would be no justification for preventing the Iraqi courts from adjudi cating his guilt or innocence while he remained in the MNF-I's custody. The court of appeals' unfounded spec ulation that Iraq might seize Omar from the MNF-I, id. at 25a-26a, is refuted by the government's declaration explaining that he would remain in MNF-I custody dur ing proceedings before the CCCI, id. at 106a. Indeed, the Iraqi courts tried Munaf while he remained in MNF- I custody, without attempting any such seizure.

Moreover, in the status-of-forces context, when a foreign nation exercises criminal jurisdiction over a member of the United States military, the United States commonly retains physical custody of the individual dur ing the judicial proceedings in the foreign nation's courts. See International Extradition 95. Although the United States generally has no legal right to insist on retaining custody, foreign nations frequently agree to the accommodation. See Cozart, 236 F.2d at 733. Omar has no legal entitlement to greater protection than our soldiers receive by the grace of other nations.

To be sure, if Iraqi courts convicted Omar of criminal offenses, that action would underscore the absence of any basis for the United States courts to enter an in junction against his release to Iraqi custody. At that point, Omar's habeas petition would amount to an imper missible collateral attack on his Iraqi conviction. In deed, Munaf's habeas petition is now in precisely that untenable posture. As discussed, however, the writ of habeas corpus provides no license for the United States courts to sanction collateral attacks on foreign proceed ings. Habeas corpus does not allow direct attacks on foreign judgments, and it does not allow a court to achieve the same result indirectly by enjoining a foreign criminal proceeding from reaching judgment.

In sum, the injunction upheld in Omar interferes with the United States' international commitments to the U.N., the other countries comprising the multina tional force, and the Government of Iraq; overrides the determinations of a multinational force acting pursuant to authority derived from the U.N. at the request of Iraq; intrudes on Iraq's sovereign interest in prosecut ing serious criminal offenses committed within its own territory; and impedes the fundamental mission of the multinational force to help bring security and stability to Iraq. It finds no support in existing precedent and it should be set aside by this Court.

CONCLUSION

The judgment of the court of appeals in No. 06-1666 should be affirmed. The judgment of the court of ap peals in No. 07-394 should be reversed.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
DARYL JOSEFFER
Assistant to the Solicitor
General
DOUGLAS N. LETTER
JONATHAN H. LEVY
LEWIS S. YELIN
Attorneys

 

 

JANUARY 2008

 

1 The MNF-I's authority is subject to periodic review and reconsid eration by the U.N. Security Council. Most recently, the Security Council extended the MNF-I's mandate through December 2008, see S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007) <http://www.un. org/Docs/sc/unsc_resolutions07.htm>. The President of the United States and the Prime Minister of Iraq recently announced that Iraq does not intend to request an additional extension of the MNF-I's mandate beyond 2008. Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America (Nov. 26, 2007) <http:// www.whitehouse.gov/news/releases/2007/11/print/20071126-11.html>.

2 To date, the MNF-I has held three status review hearings for Omar. Omar had the same opportunity to be present, make a state ment, and call witnesses at each hearing. At the second hearing, held in March 2007, some of the individuals who were seized with Omar recanted their previous statements implicating Omar in insurgent acti vities. The March 2007 MNF-I tribunal nevertheless found sufficient evidence to continue detaining Omar. The most recent MNF-I tribunal likewise determined in September 2007 that Omar should continue to be detained as both a security internee and an enemy combatant.

3 A United States military officer, who is a member of the MNF-I, appeared in the trial court at the request of the Romanian government to make a formal complaint against Munaf and his codefendants, as is customary under the inquisitorial system. J.A. 62-63. Weeks before he made the complaint, the officer filed with the trial court a formal letter from the Romanian Embassy authorizing him to make the complaint on Romania's behalf. J.A. 63.

4 See Hirota Mot. 25; Airgram from the Acting Political Advisor in Japan to the Secretary of State (Nov. 22, 1948), in 6 U.S. Dep't of State, Pub. No. 8681, Foreign Relations of the United States, 1948, at 897-898 (1974) (Foreign Relations); Telegram from the Acting Political Advisor in Japan to the Secretary of State (Nov. 24, 1948), in 6 Foreign Rela tions 908.

5 The three-member MNF-I tribunal determined that Omar was not only a security internee but also an enemy combatant. See p. 5, supra. Omar's detention by the MNF-I, however, is justified by international authority, and does not depend solely on United States authority, and the MNF-I has, pursuant to international authority, sought to refer Omar's case to Iraqi authorities. In this habeas action Omar has chal lenged his detention by the MNF-I vel non (and therefore his detention pursuant to international authority) and sought to enjoin his transfer to Iraqi criminal authorities. Should the United States choose to detain Omar as an enemy combatant after the international authority for his detention as a security internee were to expire (for example, through the expiration of the U.N. declarations authorizing the MNF-I), a different jurisdictional question would arise.

6 In Omar, the court of appeals stated that "the government con cedes * * * that [U.S.] forces operate 'subject to' no independent MNF-I authority." 07-394 Pet. App. 15a. It is not clear what the court intended by that statement. As the government made clear, the MNF-I is an international entity distinct from the United States and, while the MNF-I is under unified American command, the same was true of the multinational force in Hirota. See, e.g., Omar Gov't C.A. Br. 5-6, 30; Omar C.A. Reply Br. 5-6; 9/11/2006 Omar Tr. 10-11. Indeed, the government specifically explained that it would "mischaracteriz[e]" the government's arguments to say that U.S. forces do not operate "subject to * * * multi-national authority." Id. at 20-21.

7 One court's entry of judgment can have preclusive consequences on other pending litigation. See, e.g., Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005). But "[p]reclusion, of course, is not a jurisdictional matter"; it is a defense on the merits. Ibid.

8 Were it otherwise, Eisentrager could have been decided with a quick citation to Hirota. But Eisentrager focused on the status of the petitioners, not on the source of detention authority. For similar rea sons, this Court's intervening decisions in cases like Rasul v. Bush, 542 U.S. 466, 481 (2004), and Braden v. 30th Judicial Circuit Ct., 410 U.S. 484 (1973), do not undermine the continuing validity of the Hirota rule. Hirota in no way turned on the territorial reach of the Great Writ. Hi rota essentially assumed arguendo (before Eisentrager settled the mat ter to the contrary) that the writ could have extended to the petitioners if they were held by United States forces under United States law, but held that jurisdiction was absent for the independent reason that the petitioners were held under multinational authority.

9 Several aliens held by the MNF-I have already filed habeas petitions seeking injunctive relief prohibiting the MNF-I from trans ferring them to Iraqi custody. See, e.g., Ramadan v. Bush, 127 S. Ct. 1512 (2007) (No. 06A894) (application for injunction pending appeal denied by the Court); Al-Bandar v. Bush, 127 S. Ct. 854 (2007) (No. 06A644) (same); In re Hussein, 468 F. Supp. 2d 126 (D.D.C. 2006) (motion for injunction and habeas petition denied for lack of jurisdiction under Hirota). While those petitioners had been convicted by a foreign tribunal before initiating their habeas actions (and therefore would be precluded from filing habeas claims under the court of appeals' "con viction" limitation), it stands to reason that foreign nationals detained by the MNF-I who are detained as a preventive matter or otherwise have not yet been convicted by a foreign tribunal would file habeas actions in the United States courts if this Court were to affirm in Omar without regard to citizenship.

10 As was true with respect to the United States Army in Wilson (see 354 U.S. at 529-530), the fact that the MNF-I retains discretion under its U.N. mandate and arrangements with Iraq to determine the circum stances in which it will refer cases to the CCCI or transfer individuals to Iraqi criminal authorities does not alter the analysis. That discretion does not eliminate Iraq's jurisdiction over criminal matters within its own borders or authorize the United States courts to interfere with an MNF-I determination to refer a case to the CCCI or transfer an indi vidual to Iraqi custody.

Type: 
Merits Stage Brief
Updated October 21, 2014