We have known each other for a long time, so I’m going to ask you to indulge me in the war against “enemy combatant fatigue” (the medical condition wherein each court case about the “war on terror” warrants exponentially less outrage and attention). This dispatch is about two U.S. citizens named Mohammad Munaf and Shawqi Omar, being held by a coalition led by U.S. forces in a U.S. military prison in Iraq. But I’m going to ask that you pretend their names are Morgan and O’Hara instead. Because it’s always easy to throw Munaf and Omar under the constitutional bus. Morgan and O’Hara have American kids and wives, and sometimes they even serve in the Minnesota National Guard.
Munaf/Morgan is a dual U.S.-Iraqi citizen with a noncitizen wife and three small U.S.-citizen kids. He claims he went to Iraq as a translator for three Romanian journalists, who were then kidnapped. He was kidnapped, too. After the Romanians’ release, Munaf was charged with plotting in the kidnapping, then he was convicted and sentenced to death in the Iraqi Central Criminal Court. Munaf confessed to the plot but recanted at trial, claiming his confession had been coerced under the threat of abuse. He petitioned for habeas corpus relief in the U.S. courts—Latin for “get me outta here”—but was turned down there and again at the federal appeals court for the District of Columbia, chiefly because he’d already been convicted in the Iraqi system. Three weeks ago, an Iraqi appeals court overturned that Iraqi conviction.
Omar/O’Hara is a dual U.S.-Jordanian citizen, married to a U.S. citizen, with six American children. He served in the Minnesota National Guard. In 2002, Omar traveled to Iraq, seeking work in the reconstruction. In a 2004 raid on his home, U.S.-led forces allegedly discovered an Iraqi insurgent, four Jordanian jihadists, and explosive materials. Like Munaf, he’s being held at a U.S. military prison at Camp Cropper, near Baghdad. Before he could be transferred to the Iraqi courts, Omar’s wife filed a habeas corpus petition, alleging that as a Sunni Muslim he’d likely be tortured in custody. The federal district court found it had jurisdiction to hear his habeas corpus petition, then enjoined his transfer to Iraqi custody. The federal appeals court for the District of Columbia agreed. The two cases were consolidated for argument.
The Bush administration’s main argument in this case is a simple one—a variation of which you may remember from the golden days of lawlessness at Guantanamo: Sure, the military authority in Iraq might look like it’s composed of U.S. soldiers, the prisons may appear to be U.S. military jails, the whole effort may seem to be led by the U.S. president, but really these “enemy combatants” are not under U.S. jurisdiction. Why? Well, just as American troops are merely renting out Gitmo from the Cubans, the authorities that captured and held Omar and Munaf are actually just part of a U.N.-mandated international force.
Never is the president’s respect for foreign nations greater than when they’re holding the legal bag for him. Under this theory, as long as a French chef serves up some crepes in Baghdad once in a while, it’s a multinational, not a U.S., army. Oh. And the reason we must allow the Iraqi courts to have their way with U.S. citizens captured there? Because the president worries that if American courts intervene, “other nations would inevitably take offense.”
Wouldn’t want to offend other nations.
Deputy Solicitor General Gregory Garre has the unenviable task of defending this principle. He must explain why American citizens held by American forces abroad don’t actually have a right to habeas corpus relief, comparable to that established in Hamdi v. Rumsfeld. The more relevant case, urges the government, is actually a 1948 case, Hirota v. MacArthur,which determined (in about nine opaque sentences) that American courts had no habeas jurisdiction over Japanese nationals captured, held, and tried by Allied forces in World War II. Of course, those guys weren’t citizens like Morgan and O’Hara.
Almost as soon as he mentions Hirota, Justice David Souter clocks Garre with the fact that “you’ve got American citizens here.” And Justice Ruth Bader Ginsburg hastens to add that the other difference in Hirota was that there had already been “convictions and sentences” in the foreign court, whereas Omar’s case “has not even been investigated by the Iraqi courts, certainly no conviction,” and Munaf’s conviction was quashed.
Garre replies that Hirota wouldn’t have come out differently even if the habeas petitions had been sought before conviction and with the equally unsupported assertion that the fact that it was an international authority trying the prisoners was “key to the court’s finding that there was no jurisdiction.” Souter replies that if the president acting alone can simply “make an agreement for an international force” and thus suspend all judicial habeas jurisdiction over American citizens, well, that’s “a little scary.”
Garre suggests the forces in Iraq aren’t really there under color of U.S. authority, but Souter cuts him off: “You’ve got an American commander and straight-line authority right through.” Garre responds that the “United Nations controls the strings.” Ginsburg asks, “How many people are being held in the custody of this multinational force the U.S. controls?” Twenty-four thousand, replies Garre. And they all have an American judge on speed-dial.
Chief Justice John Roberts asks for some limiting principle here: Should U.S. citizens be turned over to foreign courts in which “they won’t receive anything resembling due process and will be subject to abuse”? Garre opts to brazen it out with the claim that when American citizens go abroad, “they have to take what they get.” Justice John Paul Stevens asks if they can thus “be released to a lynch mob.” Garre wisely says that question can be reserved for another case.
Justice Anthony Kennedy says (Kennedy-like), “But habeas corpus is concerned with the safety of the prisoner to the extent it’s controlled by our authorities.” (He doesn’t think people should be released to lynch mobs, but adds—for the benefit of our foreign friends—that this is “just a hypothetical question.”) Roberts practically erupts that Garre should not “concede that habeas is concerned with the safety of the individual as opposed to his custody.” This leads Garre to go all doe-eyed about the “sovereign right and jurisdiction” of foreign countries. You know, the same foreign countries we like to invade and occupy?
Ginsburg points out the “high risk that [Munaf and Omar] will be subject to torture and abuse,” quoting Iraq’s deputy justice minister, who admits in one of the briefs that “we cannot control the prisons.” Garre replies that the torture and abuse in Iraq comes out of the Ministry of the Interior and Ministry of Defense and not the Ministry of Justice (it’s good to specialize), but he warns that it’s not for the courts to engage in fact-finding about the nature of the lynch mobs awaiting prisoner release. “These are matters for the executive to assess.” Garre asks the court to respect the determination of the executive branch and the “justice systems of other sovereign nations.” Priceless.
Joseph Margulies represents Munaf/Morgan and Omar/O’Hara. His first few minutes of argument are impressive. He’s in the middle of distinguishing Hirota from his clients’ case when suddenly Justice Stevens kind of hurls himself at his head like an enraged bobcat in a bow tie. “Does your case depend entirely on the fact that these are American citizens?” Margulies tries to reply, but Stevens cuts him off again and then again. And yet again. Stevens beats on him like a drum about whether or not the detainee’s citizenship matters and then about whether or not the place of detention matters, and by the time Kennedy gets his mitts on Margulies, it’s no longer clear what matters at all. Ginsburg kneecaps him with yet another hypothetical, and Justice Samuel Alito starts up again with the citizenship.
At some point, both Souter and Stevens are hollering at once, and Roberts is grinning that there is no bright-line rule left at all. Roberts contends that “the historic purpose of the Great Writ was to challenge custody,” but habeas relief isn’t really even what Margulies’ clients want. This leads Margulies to draw an invisible imaginary four-box-decision grid that obscures rather than clarifies an invisible theoretical discussion about prisoner releases versus transfers. Most of the rest of the argument bogs down in whether the transfer of prisoners is lawful or unlawful, and what relief they could possibly be seeking in the first place (three points for Eric Posner). It finally runs aground when Margulies and Kennedy lock horns over whether there is a due-process restriction on release by the United States to another sovereign nation. Margulies thinks yes. “That’s just got to be wrong,” Kennedy says flatly.
I stopped counting the number of times I heard someone claim to be “confused.” But the government somehow managed to make a difficult case easier, and the opposing side turned a rather clear-cut case into a roller derby. That’s probably why Justice Stephen Breyer steps in during the last few moments to ask Margulies whether he needs all this extraneous stuff to win this case. “You’ve been arguing for all sorts of things that seem far broader than that.”
Not a pretty day at the high court and not at all clear whether a baffling oral argument helped wrest defeat from the jaws of victory for Munaf and Omar.