Making Sense Out of the Iraqi Detention Cases

[Cross-posted from Concurring Opinions]

As Lyle noted on Tuesday over at SCOTUSblog, the first Iraqi detention case has made its way to the Supreme Court, with the filing of the cert. petition in Munaf v. Geren. Given that the hypertechnical issues raised in the cases might make it somewhat difficult to appreciate the full scope of what is at stake, I thought I'd add my own two cents on why Munaf is such an important case, both with respect to clarifying the D.C. Circuit's messy case law, and with respect to (finally) dealing with the Supreme Court's 1948 decision in Hirota v. MacArthur, either by limiting it to its narrower holding, or by doing away with it altogether.

More below the fold...

The Basic Issue:

The central question raised by Munaf is under what circumstances, if any, the federal courts may exercise jurisdiction over habeas petitions brought by individuals detained by the Multinational Force-Iraq ("MNF-I"). Critical to understanding the complexity of this question is understanding the two central variables:

1. Is the detainee a U.S. citizen or a non-citizen?
2. Is the detainee being held pursuant to a conviction by the Central Criminal Court for Iraq ("CCC-I") or not?

The Cases:

Thus far, U.S. courts have considered three of the four possibilities raised by the above two variables.

The Omar case (Omar v. Harvey) involves a U.S. citizen held by the MNF-I, but _not_ convicted by the CCC-I. Indeed, Omar sought a preliminary injunction _barring_ his transfer to the CCC-I, which the district court granted in February 2006, and which the D.C. Circuit affirmed earlier this year (before denying the government's petition for rehearing en banc).

The Munaf case (Munaf v. Geren) involves a U.S. citizen held by the MNF-I _pursuant to_ a conviction by the CCC-I. Munaf's habeas petition was dismissed by the district court last summer on jurisdictional grounds, and the D.C. Circuit affirmed the dismissal (although divided as to whether the affirmance was on jurisdictional or merits grounds) in April of this year. The cert. petition filed earlier this week (and thoroughly described by Lyle) seeks review of _that_ decision.

There have also been a handful of cases brought by _non-citizens_ held by the MNF-I pursuant to a conviction by the CCC-I. Most prominent among them is the last-minute stay application filed by Saddam Hussein, which the D.C. district court dismissed on jurisdictional grounds last December. Other cases, including, most recently, Ramadan v. Bush, have met with a similar fate.

Finally, to my knowledge, there has not yet been a case brought in U.S. court by a non-citizen detained by the MNF-I, but not pursuant to a CCC-I conviction. Or if there has been, I am unaware, as yet, of any rulings in such a case.

Distinguishing Among the Cases--What About Hirota?:

In all of the cases described above, the government has argued that federal jurisdiction is precluded by the Supreme Court's 1948 decision in Hirota v. MacArthur. As many readers know, I have an article hot off the presses (see 95 Geo. L.J. 1497 (2007); not yet on Westlaw) about Hirota and its relevance to the pending cases. To spare you the punishment of reading it, let me suggest three questions that make clear why Hirota's application to these cases presents such a doctrinal morass:

1. Did Hirota turn on the absence of _all_ federal jurisdiction, or just the Supreme Court's constitutional "appellate" jurisdiction?

Although Munaf has argued, rather forcefully, that Hirota concerned only the narrow question of the Supreme Court's jurisdiction to entertain an "original" habeas petition, and not the availbility more broadly of _all_ federal jurisdiction, the D.C. Circuit subsequently held, in a 1949 decision called Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949) [not available online], that Hirota also applied in the lower courts. Judge Tatel seized upon this point in Omar, noting (correctly, I think) that Flick, so long as it remains on the books, compels the answer to this question even if Hirota itself does not. [Note: The per curiam opinion in Hirota, as I explain in my article, reflected Justice Black's apparent insistence that it not explicitly rest on _either_ jurisdictional defect, which makes this that much thornier.]

2. Did Hirota turn on the citizenship (or lack thereof) of the petitioners?

The second argument advanced in Omar and Munaf for distinguishing Hirota is that Hirota was a non-citizen, and the federal courts _must_ have jurisdiction over such petitions where citizens are concerned. While this argument is obviously a compelling one as a policy matter, it's a lot more dubious as a matter of constitutional law, for reasons I try to suggest in my article (and which Judge Lamberth explains more succinctly in the district court decision in Munaf, and Judge Brown hints at in footnote 1 of her dissent in Omar). Whether Hirota concerns limits on the Supreme Court's constitutional appellate jurisdiction, or on Article III more generally, it is dubious to read a citizenship-based distinction into the limits on federal question jurisdiction contemplated by the Constitution. Indeed, Justice Douglas, in his post hoc concurrence in Hirota, seemed to agree that whatever rule the obtuse per curiam in Hirota stood for, it was one that would apply equally to citizens and non-citizens alike. [Note: This result is exactly why I think Hirota must be overruled, but I'll come back to that shortly.]

3. Does Hirota only preclude jurisdiction over "collateral" (or "post-conviction") habeas petitions?

This last question, although the "smallest" as a constitutional matter, is the most significant in the current cases, for it is the _only_ basis for distinguishing Omar (in which the D.C. Circuit upheld jurisdiction) and Munaf (in which it rejected jurisdiction). The problem, as I explain in the article, is that the suit in Hirota wasn't, in fact, a "collateral" challenge to Hirota's conviction by the Tokyo war crimes tribunal (indeed, it is important to remember that Hirota was decided _before_ Brown v. Allen, which first threw open the door to federal consideration of collateral habeas petitions). Precedents from the Civil War already established that federal courts only had jurisdiction to inquire into the jurisdiction of military tribunals, and so Hirota could have relied on those cases if it was rejecting jurisdiction on the ground that the lawsuit sought post-conviction collateral relief. But in reality, Hirota's petition challenged the jurisdiction of the IMTFE, and the constitutionality of General MacArthur's participation therein. Hirota may have had no case on the merits, but the Court's dismissal for want of jurisdiction suggests that Hirota applies even to "jurisdictional" habeas petitions, and that it therefore does not distinguish between whether the petitioner is seeking post-conviction relief or not.

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To whatever extent the above analysis makes sense, it should suggest that the D.C. Circuit's decisions in Omar and Munaf are completely irreconcilable, and that Hirota, read together with Flick, _does_ preclude jurisdiction over the petitions in both (indeed--all) cases. To me, that's a compelling argument for overruling Hirota, or at least Flick, but even to those who might disagree (and, to be clear, I don't mean to suggest that the petitioners in these cases will prevail on the merits; only that the courts should _reach_ the merits), it strikes me as a compelling argument for the Supreme Court to grant certiorari and clean up this mess.