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United States Supreme Court: Munaf V. Geren
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 2008
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Endnotes
page 707 note 1 128 S. Ct. 2229 (2008).
page 707 note 2 128 S. Ct. 2207 (2008).
page 707 note 3 The facts are taken from the Supreme Court decision, and from Justin Florence &David Fontana, Whose Prisoners Are They, Anyway?, Slate, Dec. 14, 2007, http://www.slate.com/id/2180056/.
page 707 note 4 See In re Hikmat, No. 19/Pub. Comm'n/2007 (Feb. 19, 2008)(Iraq).
page 707 note 5 See Munaf, 128 S. Ct. at 2214.
page 707 note 6 Id.
page 707 note 7 See Hirota v. MacArthur, 338 U.S. 197 (1948) (per curiam). For more on Hirota's background and implications, see Stephen I. Vladeck, Deconstructing Hirota, : Habeas Corpus, Citizenship, and Article III, 95 Geo. L.J. 1497 (2007).Google Scholar
page 707 note 8 See Omar v. Harvey, 416 F. Supp. 2d 19 (D.D.C. 2006). A three-judge panel of the D.C. Circuit unanimously affirmed the district court's jurisdictional analysis, but divided 2-1 as to the propriety of enjoining Omar's transfer. See Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007). Judge Brown agreed that the federal courts possessed jurisdiction, although she did not think that jurisdiction could turn on the fact mat Omar was a U.S. citizen. See id. at 15 n.1 (Brown, J., dissenting in part).
page 707 note 9 See Mohammed ex rel. Munaf v. Harvey, 456 F. Supp. 2d 115 (D.D.C. 2006).
page 707 note 10 See Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007).
page 707 note 11 See id. at 585 (Randolph, J., concurring in the judgment).
page 707 note 12 Munaf, 128 S. Ct. at 2217.
page 707 note 13 Id.
page 707 note 14 For more on this argument, see Abu Ali v. Gonzales, 350 F. Supp. 2d 28 (D.D.C. 2004). See also Karen E. Shafrir, Note, Habeas Corpus, Constructive Custody, and the Future of Federal Jurisdiction After Munaf, 16 U. Miami Int'l&Comp. L. Rev.(forthcoming 2009).
page 707 note 15 See Munaf, 128 S. Ct. at 2216.
page 707 note 16 Id. at 2218-19.
page 707 note 17 Id. at 2219.
page 707 note 18 Id. at 2220.
page 707 note 19 Id. at 2221-22.
page 707 note 20 Id. at 2223.
page 707 note 21 Id. at 2224.
page 707 note 22 Id.
page 707 note 23 Id. at 2226 (citations and quotation marks omitted)
page 707 note 24 Id.
page 707 note 25 Id. at 2226 n.6.
page 707 note 26 Compare e.g., Mironescu v. Costner. 480 F.3d 684 2007) (holding that FARRA cannot be enforced in an extradition-based habeas petition), with Khouzam v. Hogan, 529 F. Supp. 2d 543 (M.D. Pa. 2008) (distinguishing Mironescu and granting habeas relief under FARRA).
page 707 note 27 Munaf, 128 S. Ct. at 2228 (Souter, J., concurring).
page 707 note 28 Id. (citation omitted).
page 707 note 29 See, e.g., id. at 2218 (majority opinion).
page 708 note * This text was reproduced and reformatted from the text appearing at the U.S. Supreme Court website: (visited September 11, 2008, 2008) <http://www.supremecourtus.gov/opinions/07pdf/06-1666.pdf>
page 708 note † Together with No. 07-394, Geren, Secretary of the Army, et al. v. Omar et al., also on certiorari to the same court.
page 722 note 1 As noted above, Munaf s conviction was subsequently vacated by an Iraqi appellate court, and he is awaiting a new trial.
page 722 note 2 These cases concern only American citizens and only the statutory reach of the writ. Nothing herein addresses jurisdiction with respect to alien petitioners or with respect to the constitutional scope of the writ.
page 722 note 3 The circumstances in Hirota differ in yet another respect. The petitioners in that case sought an original writ, filing their motions for leave to file habeas petitions “in this Court.” 338 U.S., at 198. There is, however, some authority for the proposition that this Court has original subject-matter jurisdiction only over “ ‘cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,’ ” Marbury v. Madison, 1 Cranch 137, 174 (1803) (quoting U.S. Const., Art. Ill, §2, cl. 2), and Congress had not granted the Court appellate jurisdiction to review decisions of the International Military Tribunal for the Far East.
page 722 note 4 The habeas petitioners claim that the injunction only bars Omar's presentation to the Iraqi courts and that the CCCI trial can go forward in Omar's absence. The injunction is not so easily narrowed. It was entered on the theory that Omar might be “presented to the CCCI and in that same day, be tried, [and] convicted,” thus depriving the United States district courts of jurisdiction. Omar v. Harvey, 416 F. Supp. 2d 19, 29 (DC 2006). Petitioners’ interpretation makes no sense under that theory: If a conviction would deprive the habeas court of jurisdiction, a trial, with or without the defendant, could result in just such a jurisdiction-divesting order.
page 722 note 5 The United States has in fact entered into treaties that provide procedural protections to American citizens tried in other nations. See, e.g., North Atlantic Treaty: Status of Forces, June 19, 1951, 4 U.S.T. 1802, T.I.A.S. No. 2846, Art. VII, ¶9 (guaranteeing arrested members of the Armed Forces and their civilian dependents, inter alia, an attorney, an interpreter, and a prompt and speedy trial, as well as the right to confront witnesses, obtain favorable witnesses, and communicate with a representative of the United States).
page 722 note 6 We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand. Even if considered on the merits, several issues under the FARR Act claim would have to be addressed. First, the Act speaks to situations where a detainee is being “returned” to “a country.” FARR Act §2242(a), 112 Stat. 2681-822 (“It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States“); see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Art. 3, S. Treaty Doc. No. 20, 100th Cong., 2d Sess., p. 6 (1988) (“No State Party shall expel, return ('refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” (emphasis added)). It is not settled that the Act addresses the transfer of an individual located in Iraq to the Government of Iraq; arguably such an individual is not being “returned” to “a country“—he is already there. Second, claims under the FARR Act may be limited to certain immigration proceedings. See §2242(d), 112 Stat. 2681-822 (“[N]othing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in [this section], except as part of the review of a final order of removal pursuant to [8 U.S.C. § 1252 (2000 ed. and Supp. VI“).