Saturday, February 10, 2007

A Small But Important Habeas Victory

The District Of Columbia Circuit ruled on February 9th that Habeas Corpus is still alive. In Omar v Harvey the Court upheld the right of Omar, an American citizen being held by the U.S. in Iraq to challenge his transfer to Iraqi authorities. This is an important decision for two main reasons. First it continues a line of cases striking down the Administrations expansive views of its "wartime" powers. Second, it confirms that Habeas Corpus is still alive.

Before discussing the law, here are the facts of the case. Omar is a dual American/Jordanian citizen, with an American wife, who said he traveled back to Iraq to seek construction related work and had intended on returning to the U.S. but for his arrest. The U.S. said he was captured in a raid on alleged Zarqawi associates and that he facilitated terrorist acts inside and outside Iraq. There was a status hearing before three U.S. officers and he was declared "a security internee under the law of war" and an "'enemy combatant' in the war on terrorism."

In December, 2005, his wife filed a Habeas petition as his "next friends" in the D.C. District Court. The petition asks that the government release him or that it be required to bring him before a U.S. court to show cause for his continued detention. The suit also sought an injunction to prevent him from being turned over to Iraqi authorities. Two months later Omar's attorney was advised that in August, 2005 it was decided to transfer him to the Central Criminal Court of Iraq. (The Court notes that there is no record of who made the decision or the grounds on which it was made.)

The District Court issued a Preliminary Injunction prohibiting Omar's transfer until a full adjudication of all issues. The Government appealed and the Circuit Court upheld the lower court decision.

The Government argued that the Court does not have jurisdiction to hear the case. And then, incredibly, they argue that they propose to give him everything he asks for under Habeas, ie., transfer out of U.S. custody. Of course he would then be in Iraqi custody, but they figured it was worth a shot.

The Court dealt with the government's primary jurisdiction argument easily by saying the one case relied on, Hirota v MacArthur 338 U.S. 197 (1947), was not controlling for two reasons. First, by its terms, Hirota was only applicable to its unique facts, which are totally different than here. Second, as made clear by Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), Hirota concerned an attack on the judgment of an international tribunal, which was also not the case in Omar.

The Court then moved on to the Habeas issue and with sweeping language stated

At its historical core, the Supreme Court has explained, the
writ of habeas corpus has served as a means of reviewing the
legality of Executive detention, and it is in that context that its
protections have been strongest. INS v. St. Cyr, 533 U.S.
289, 301 (2001); see also Brown v. Allen, 344 U.S. 443, 533
(1953) (Jackson, J., concurring in the judgment) (The
historic purpose of the writ has been to relieve detention by
executive authorities without judicial trial.). Acting in
tandem with its partners-in-libertythe Due Process Clauses
of the Fifth and Fourteenth Amendments the great writ is
the instrument by which due process [can] be insisted upon
by a citizen illegally imprisoned. Hamdi, 542 U.S. at 555-56.

The Government also tried to argue that this case falls under the political question doctrine, in that it

raise[s] quintessential political questions beyond the
authority or competence of the judiciary to answer.
Appellants Br. 41. The political question doctrine puts
beyond judicial cognizance political decisions that are by
their nature committed to the political branches. Schneider
v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal
quotation mark omitted). For example, and relevant to this
case, the doctrine bars courts from considering claims whose
adjudication would require judicial wading into foreign policy
or military waters. Thus, in Schneider we invoked the
political question doctrine to dismiss a claim that would have required us to second-guess U.S. policy towards Chile.

And here is where the decision gets even better. First, noting that the doctrine of "political questions" is not a doctrine of "political case," the Court cited Hamdi -

The Supreme Court's recent decision in Hamdi makes
abundantly clear that Omar's challenge to his detention is
justiciable. In Hamdi, as here, the petitioner challenged his
detention by U.S. military authorities pursuant to an enemy
combatant determination. Although the government never
directly invoked the political question doctrine, it argued that
separation of powers concernsthe very concerns underlying
the political question doctrinepreclude courts from
inquiring into the factual basis of an enemy combatant
designation. A commanders wartime determination that an
individual is an enemy combatant, the government urged, is
a quintessentially military judgment representing a core
exercise of the Commander-in-Chief authority. Br. for the
Respts at 25, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No.
03-6696). Unequivocally rejecting this contention, the Hamdi
plurality explained that it does not infringe on the core role
of the military for the courts to exercise their own time-
honored and constitutionally mandated roles of reviewing and
resolving claims like those presented here. Hamdi, 542 U.S.
at 535.

The Court moved on to the Government's final claim, that theysoughted to give Omar what he wated, release from U.S. custody. It would either be a direct transfer to the Iraqis or as discussed in the dissent, a wink and a nod release with Iraqui authorities waiting at the gate to arrest him. The court responded that a transfer to someone else's custody was not a release, and with respect to possible subtrefuge stated,

If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him
either directly through a formal handoff or indirectly by
releasing him with a wink-and-a-nod to the Iraqis. The
United States may certainly share information with other
sovereigns, see id. at 6-7, but it may not do so in a way that
converts Omar's release into a transfer that violates a court

There are other important points in the decision but these are some of the main ones. There also is a dissent which I will not discuss now except to say that its points were week and handily disposed of by the majority.

In sum, this is a great case. Not only for the holding and the broad grounds relied on but also because of the Court itself. This is the D.C. Circuit, arguably the most influntial one in the Country. Rejoice! The Courts are alive and kicking.

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