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Thursday, February 09, 2006

Justice Douglas and Omar v. Harvey

Last semester in my Federal Courts class, the essay question on the midterm asked the students to analyze the Supreme Court's 1948 opinion in Hirota v. MacArthur, and decide whether Article III U.S. courts could constitutionally exercise jurisdiction over U.S. citizens tried for war crimes by a hypothetical joint Iraqi-American War Crimes Tribunal. [The short per curiam opinion in Hirota held that there was no such jurisdiction with respect to a Japanese general convicted by the International Military Tribunal for the Far East (the formal name for the Tokyo war crimes tribunal).] The point of the distinction was to emphasize Justice Douglas's post-hoc concurrence in Hirota, in which he suggested, rather clearly, that the jurisdictional analysis might differ where a U.S. citizen, rather than a non-citizen, was seeking Article III review, a point the majority didn't reach.

Well, so much for hypotheticals.

My friend and fellow national security law prawf Bobby Chesney at Wake Forest pointed me to the pending habeas petition filed by Shawqi Omar, a U.S. citizen in U.S. military custody in Iraq. Omar sought and received a temporary restraining order  in the D.C. district court earlier this week barring his transfer to Iraqi custody during the pendency of his habeas petition.

In its very angry response, the government puts forth a number of procedural arguments, and one substantive argument -- Omar, in its view, has no possible claim on the merits, because he is not actually in U.S. custody, and therefore there is no jurisdiction over his habeas petition. Instead, citing Hirota (and other cases where the detainee was held in purely foreign custody, and which are therefore inapposite), the government argues that Omar is in the custody of the "Multinational Force-Iraq" (MNF-I), and is thus beyond the reach of U.S. courts.

But what about Justice Douglas?

What's remarkable about the government's brief is that it even cites Douglas's Hirota concurrence, but misses what Douglas actually said. Douglas was pretty clear that he would have found jurisdiction had any of the petitioners been U.S. citizens. Consider this passage: 

Such a holding [that there is no jurisdiction] would have grave and alarming consequences. Today Japanese war lords appeal to the Court for application of American standards of justice. Tomorrow or next year an American citizen may stand condemned in Germany or Japan by a military court or commission.  If no United States court can inquire into the lawfulness of his detention, the military have acquired, contrary to our traditions, a new and alarming hold on us.

. . . .

I cannot believe that we would adhere to that formula if these petitioners were American citizens. I cannot believe we would adhere to it if this tribunal or some other tribunal were trying American citizens for offenses committed either before or during the occupation. In those cases we would, I feel, look beyond the character of the tribunal to the persons being tried and the offenses with which they were charged. We would ascertain whether, so far as American participation is concerned, there was authority to try the defendants for the precise crimes with which they are charged. That is what we should do here.

To be fair, Douglas's vote was the sixth, so his concurrence isn't entitled to any special deference. And its not an open-and-shut question on the merits. But, once again, the government is playing fast and loose, in these cases, with precedent. At least one Justice in the Hirota majority was absolutely explicit that its logic didn't apply to U.S. citizens, and the other circuit decisions cited by the government involve the detention of U.S. citizens by foreign governments, and not by multinational forces including the U.S.

All of this is to say that I think Omar has at least a colorable claim on the (jurisdictional) merits, and, quite possibly, one that will be proven correct. Time will tell, but the TRO seems entirely unproblematic, especially given the much ballyhooed Supreme Court Rule 36 and the Court's decision in Ex parte Endo re: transferring habeas petitioners [which I've previously discussed].

As for the Federal Courts midterm, well... if only I was as prophetic/prosaic with regard to my fantasy baseball team! [Damn you, Curt Schilling!]

P.S.: For additional blog coverage, see Julian's post (and Bobby's response) over at Opinio Juris...

Posted by Steve Vladeck on February 9, 2006 at 12:08 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Steve, interesting post. You are right, the brief really does sound angry and as a result is unpersuasive. In particular, I wonder whether the government really meant to argue that his fears of torture were "entirely speculative" because he's not being transferred to the precise Iraqi agency that has been identified as torturing prisoners.

Posted by: Dave Hoffman | Feb 9, 2006 12:48:05 PM

As usual, Dave hits the nail on the head... but even separate from the transfer question, which is it own whole mess, it seems at least somewhat dubious to me to argue that the U.S. has no legal control over a prisoner held by the MNF-I (which, btw, sounds like a Monday Night Football issue...). Is it really true that the U.S. couldn't, on a whim, take any MNF-I detainees back into U.S. custody? (Even assuming that MNF-I custody _is_ beyond U.S. jurisdiction, which, as my post suggests, I think is a long shot itself).

Posted by: Steve Vladeck | Feb 9, 2006 1:16:59 PM

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