Munaf and Omar, Cont’d

Thank heavens for you, too, Marty. Otherwise I would’ve completely overlooked the powerful argument that it’s really Bulgaria pulling the strings in Iraq.

As for the rest of the merits, there’s nothing you said, Marty, that I have much cause to fault. Hirota is readily distinguishable, particularly (for better and worse) on citizenship grounds. And the MNF-I arguments seem particularly likely to ring hollow on a court that has, so far, been more persuaded by arguments based in reality. As Justice Kennedy put it in Rasul : “Guantanamo Bay is in every practical respect a United States territory.” Practically speaking, I’d like to think it hard to see how the administration wins this one.

But that brings us to Eric’s argument , which I take to amount to this: Even if the federal habeas courts find jurisdiction to hear the cases, and Munaf and Omar ultimately win release from U.S. custody, they’re still in Iraq. What’s the point of this whole habeas exercise challenging the legality of their detention by the Americans if the Iraqis can just arrest them right away anyway? Several points. First, with respect to its implications for the legal question presented (Do U.S. courts have the power to hear the case?), so what? You’re raising concerns mostly about the meaningfulness of a final remedy. Even if you’re right that there’s nothing good that can come for Munaf and Omar (and I’ll argue in a sec it’s at a minimum not at all clear), we’ve all seen the Supreme Court (in an exercise, one might suggest, of judicial restraint) regularly distinguish between answering questions about whether it has the power to decide, well before it gets to the question what it has the power to decide. So for the time being, I’d say that issue just isn’t here. 

Second, a key issue that is here is the preliminary injunction barring petitioners’ transfer to Iraqi custody. That is, the question of where Munaf and Omar get to stay while the federal courts think about whether their several-year-long imprisonment by the United States without meaningful access to counsel, after (in Omar’s case) severe beatings, etc., violates anything in the U.S. Constitution or laws. There, the outcome makes a potentially huge difference, as much of the briefing in the case discusses. Petitioners have vigorous claims that sending them to the Iraqis pending trial would violate U.S. treaty obligations not to transfer anyone anywhere where they have (here, not just substantial grounds, but every expectation) of being tortured. So even if it turns out the U.S. has done nothing wrong, and Munaf and Omar ultimately get turned over to the Iraqis, I’d buy a client’s preference to put that off while the courts mull everything over.

Finally, and here I’d welcome some insight as it’s been a while since I had fed courts, what is the scope of discretion a district court has in awarding a remedy in habeas? Release is surely in the realm. What about release in a country where there’s a reasonable expectation petitioner won’t be tortured? On its face, doesn’t seem out of the question. But I’d be happy to know more.