Balkinization  

Saturday, February 10, 2007

Omar v. Harvey: Using International Law To Limit Human Rights

Guest Blogger

Aziz Huq
Director, Liberty and National Security Project
Brennan Center for Justice at NYU School of Law


Government arguments in the detention context, from its claims about the status of Guantanamo through its manufacture of the "enemy combatant" designation, are unified by a single theme: the effort to establish an area of absolute factual discretion, in which the 99% who may be innocent may be held alongside the risky remainder. For the Vice-President’s fabled one-percent solution, a zone of darkness is a sine qua non.

The Justice Department’s latest effort at establishing this zone got a rebuke today from the D.C. Circuit. The Court, in Omar v. Harvey rejected the government’s argument that no jurisdiction exists over the habeas petition of a U.S. citizen in the physical custody of U.S. officials if the latter assert detention authority under a non-U.S. source of law. From an Administration that typically evinces allergic gingerliness in handling international law, this seems quite out of turn. But this argument, which purports to be grounded on a 1948 Supreme Court decision, Hirota v. MacArthur, is not so dissimilar from previous Bush Administration arguments for unfettered discretion as first might appear: All turn on surprisingly ambivalent features of international law.

By way of background, Shawqi Omar was arrested by U.S. forces in Iraq in October 2004. After interrogation using electric shocks to prompt answer, Omar was rotated between U.S. bases in Basra and Baghdad, where he remains, two-and-a-half years after his initial pick-up. In Omar, as in an analog companion case that will be argued this Friday in the D.C. Circuit the government makes a simple but sweeping claim: If the sign on the door says “U.N.,” no U.S. court can look inside to determine whether a U.S. citizen’s detention comports with either the law or the Constitution. Pace Hamdi, U.S. soldiers can sweep in “the errant tourist, embedded journalist, or local aid worker,” even U.S. citizens, so long as the government purports to be acting under color of non-U.S. law. In Iraq, the fons et origo of this extraordinary power is a set of U.N. Security Council Resolutions, specifically 1546, 1637, and 1723, that authorize a “continued presence of the multinational force” in Iraq.

Of course, the present Administration’s leeriness of international law, from its decision to 2001 withdraw from the ABM treaty to its recent refusal to sign a UN convention against forced disappearances, is legendary. But from the inception of the “war on terror,” international law, like other international allies, has in fact played a more ambivalent role for Administration. From the Justice Department’s January 2002 memo on the Application of Treaties and Laws to al Qaeda and Taliban Detainees, (available here), the exercise of the United States, right to international self-defense under Article 51 of the U.N. Charter has opened floodgates for the exercise of coercive force against nations and individuals. More ingenuity, in the January 2002 and its successors, was required to engineer the international law-of-war into a one-way ratchet for executive power.

In form, the government’s argument in Omar was analogous to earlier efforts to seek an authorization from international law and then to sidestep the constraints international law places on state coercion. At least from an international law perspective the Government had an easier road to travel than in the Guantánamo cases that still linger before the D.C. Circuit. The main body of the Geneva Conventions do not apply to U.S. citizens held by the United States. Article 4 of the Fourth Convention exempts from that treaty’s scope those “in the hands of a Party to the conflict or Occupying Power of which they are not a national. For this class of detainees, only common Article 3 obtains. (Apparently, the 1949 drafters made the reckless assumption that a country would never subject its own citizens to lawless detention and treatment or that international law had no business regulating a country’s brutalization of its own nationals, perhaps an odd inference since the Universal Declaration of Human Rights had been promulgated but a year before).

The D.C. Circuit rejected the government’s ratchet argument in Omar, necessarily turning down the argument that a U.N. Security Council Resolution functions as an “out” from obligations under the Suspension Clause. As Lyle at SCOTUS blog explains, this is largely the result of the Court’s reading of Hirota, a three-paragraph 1948 Supreme Court per curiam that rejects an original habeas corpus writ from the former Japanese prime minister and foreign minister. As I explain in a symposium article forthcoming in the Annual Survey of American Law, the Hirota per curiam rests on the mundane and necessary limits of the Supreme Court’s Article III jurisdiction. These have been hornbook law since Ex Parte Bollman. Specifically, Hirota sought Article III “original,” not “appellate,” jurisdiction. But the Supreme Court has original habeas jurisdiction of the kind Hirota sought only in the limited set of cases described in Article III, section 2. Not being an “Ambassador,” a “public Minister” or one of the “Consuls,” Hirota struck out. (This was not the ground on which the D.C. Circuit ruled, but will be relevant if the case were to be heard higher up in the judicial hierarchy).

Whatever the eventually adopted reading of Hirota, the government’s inventive use of that decision raises telling questions about the structures most conducive to the protections of civil liberties. Since the Geneva Conventions and the Universal Declaration of Human Rights, it has been a truth near universally acknowledged that international law is a source of protection against states jealous of individual rights. The new convention on forced disappearances is but the most recent in a sequence of international enactments that pursue an uphill trajectory, aiming for a more perfect legal realization of human liberties.

But what if this Whiggish vision of international law is already fiction? After all, the aspirations of the World Social Forum aside, it is executive branches that are represented in international fora, and that make international law. As Balkinzation guest Kim Lane Scheppele has explained in recent articles and in a forthcoming book, should it any surprise that executives act in self-dealing ways when at the U.N.? Kim has pointed out how since September 2001, the U.N. Security Council has required countries to enact new and more draconian counter-terrorism laws – and that countries have tripped over themselves in so doing.

Resolution 1373, for example, was enacted on September 28, 2001 in the penumbral shock of 9/11. It demands that states freeze the assets of listed terrorists. Listed entities and individuals do not receive even the de minimus due process enjoyed under the U.S.’s 1977 International Economic Emergency Powers Act. Only in the European court system has litigation begun on the propriety and wisdom of a supra-national body promulgating lists of “terrorists” that are the yield of chancelleries around the globe dredging through dusty files, searching for “enemies of the state.”

What if the ascendant arc of international human rights between 1948 and 2001 was an anomaly? What if international law is indeed fated in the long term to return to statist roots? Civil libertarians now find little sustenance in domestic trends. 2006 saw the enactment of new counter-terrorism legislation not only in the United States, in the form of the ill-conceived, ill-informed, and ill-intentioned Military Commissions Act, but also in the United Kingdom. It is not only international law where there is a one-way ratchet at work. Each new emergency (or, as in the case of the Military Commissions Act, each hypothesized yet false emergency), enables a political faction to mobilize for electoral purposes by purporting to be “tough on terror,” and ratcheting down the institutional protection of rights. Like the “war on crime” disastrously fought since the early 1970s, democratic counter-terrorism policy risks spiraling into greater and greater dysfunction. In the crime context, we are at the point of foregoing all but the retributive goal of punishment, and the mass incarceration and the consequent evisceration of certain neighborhoods is the rule. The “war on terror” analogs are straightforward to imagine.

What’s troubling is how few options this leaves open. For if both international fora and domestic political processes are susceptible to self-dealing and partisanship, what opportunities for rational and humane debate on counter-terrorism remain?


Comments:

Josheph Heller foresaw all this:

"That's some catch, that Catch-22," he [Yossarian] observed.
"It's the best there is," Doc Daneeka agreed.


Here's my prior take on a slightly different Hellerism. By the time of the 2009 inaugural, I expect they'll have played out the whole book.

Cheers,
 

L.S.,

In many cases, article 103 of the Charter is the root of all evil:

"In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

That's what got the European Court of Justice in trouble in the Yusuf and Kadi cases, where it ruled that it did not have jurisdiction to review whether the UNSC's sanction resolutions complied with international human rights treaties other than the rules of ius cogens. Especially if combined with a monist system of international law, this gives the Security Council enormous power...
 

Is it not possible, the Bush Administration notwithstanding, that the U.S. can be a leading voice in int'l law, helping promote the cause of justice, in part by leading the way?

I think so. The material and opportunities are there, even among the pitfalls suggested by this post.
 

This case actually presents a very simple question of entitlement to a preliminary injunction.

Omar is a US citizen via marriage who is in the custody of the US government. Therefore, he has every right to access to habeas corpus. The government's argument to the contrary is nearly frivolous.

However, Omar is turning the purpose of habeas corpus on its head.

Omar was captured with an al Qaeda cell in Iraq and his home contained materials for making bombs. Per the Geneva Conventions, the military provided him with a status hearing and determined that he was in illegal enemy combatant.

As such, the military can detain Omar for the duration of the conflict with al Qaeda without further process. Probably realizing this, Omar's attorneys never attempted to use habeas corpus to release Omar during his detention over the past 2 years. It was only when the US military notified Omar's attorneys that they intended to release Omar into Iraqi custody for a trial that Omar's attorneys acted.

Omar's attorneys are in a bind. The only means by which US courts may exercise jurisdiction over Omar in Iraq is through habeas corpus. However, the ultimate remedy provided by habeas corpus is the release of the prisoner, which is precisely what Omar is seeking to avoid. Thus, Omar's attorneys filed an internally contradictory petition seeking both that Omar be released and a preliminary injunction requiring that he be detained by US forces until the courts can rule on his petition to be released.

Of the four elements used by courts to determine if a preliminary injunction is proper, only one applies here - Is Omar likely to prevail on the merits of his claim?

Omar's goal is to escape justice before an Iraqi court. To achieve that goal, the district court ruling on Omar's petition would have to order either (1) effective lifetime detention by the US military in Iraq or (2) what Judge Brown called "release plus" - which is release plus a guarantee of immunity in Iraq or transportation out of the country. The district court may not order any of these remedies pursuant to habeas corpus.

Of the three member panel, only Judge Brown is addressing this question straight on and properly ruled that there is no legal basis upon which the district court can enjoin the very release which Omar's petition seeks.

The majority of the DC Circuit panel is simply avoiding making a decision in this case. They argue that Judge Brown's description of the potential outcomes of the district court's review of Omar's petition are "speculative" without offering any legal alternative under which the district court could grant Omar's goal of "release plus."

Judge Brown has again demonstrated that she does not shy away from tough decisions and would make a fine SCOTUS justice.
 

"Bart" DePalma says:

Omar is a US citizen via marriage...

Wow. How's that work? Care to point to where in the U.S. immigration law it says I become a citizen when I marry my fiancee? Does it apply to domestic partners as well?

Cheers,
 

Attention Comrades!
We're back....please visit http://ministryoflove.wordpress.com to learn about our creative protest of the Military Commissions Act, or watch our fabulous new video at:
http://www.youtube.com/watch?v=uOq5yHDkQgY
Regards,
O'Brien
 

arne:

I only repeated the facts given on the opinion:

Omar became a naturalized American citizen
following his marriage to the former Sandra Kay Sulzle.


The pertinent fact was that, unlike nearly all of the Captures in this war, Omar was a citizen and entitled to habeas review.
 

This is one of those cases where it's useful to remember that few people are 100% wrong all the time.

The opinion noted that "following" marriage he became a citizen. This is more well phrased than "via" marriage, which might be inferred to mean that at the wedding ceremony, he immediately became a citizen.

As noted here, marriage is one route to naturalization, though it appears to take some time to complete the procedure.

But, the comment is mostly right, as noted by a Yahoo news tidbit:

"Shawqi Ahmad Omar, born in Kuwait and a US citizen by marriage, is protected by the US constitution from unlawful imprisonment."

[DOMA etc. doesn't recognize same sex marriages, so the law would not so recognize same sex marriages for this federal purpose. In so doing, it is probably open to constitutional challenge.]

BTW, the dissent seems to take what is the "obvious" result of a ruling not what it legal and actually possible. The majority notes the difference, underlining it isn't quite "obvious."

The difference, of course, would not stop her from being good Bush justice material. Likewise, if we take B's strategy summary on face value, it wouldn't be the first time when lawyers determine delay is the best bet, including delaying a trial since the end result might not be ideal.
 

"Bart" DePalma says:

arne:

I only repeated the facts given on the opinion:

"Omar became a naturalized American citizen following his marriage to the former Sandra Kay Sulzle."


No. What you did do is state: "Omar is a US citizen via marriage..."

He may have become a "naturalized American citizen following his marriage", but that hardly means he did it in part due to eligibility for such due to such marriage, much less that it was "via marriage" or as you imply, by dint of such marriage.

As you should know, you become a "naturalized American citizen" via becoming naturalised. Your eligibility for a green card and/or naturalisation may be helped by marriage to a U.S. citizen, but that hardly is sufficient to do the trick.

What's worse is your insinuation (by mentioning the marriage) that perhaps his naturalisation isn't quite up-to-par or legitimate. Why is it important to you to mention marriage?

Cheers,
 

arne:

Do you have anything to contribute to the issue raised by the post or the points raised in my reply?

Or are you just playing a game of trivia gotchya?

I could care less by what procedure Omar became a citizen. The important fact for the purposes of the government's first argument was that he is a citizen.

As for why the Court opinion which I summarized and the media noted that Omar became a citizen through marriage, I could care even less. This fact does not make Omar less of a citizen.
 

"Bart" DePalma says:

I could care less by what procedure Omar became a citizen....

Then why did you bring it up?

... The important fact for the purposes of the government's first argument was that he is a citizen.

I agree. That was my point.

Cheers,
 

"Bart" DePalma:

As for why the Court opinion which I summarized and the media noted that Omar became a citizen through marriage, I could care even less. This fact does not make Omar less of a citizen.

OIC. You just cut'n'paste without attribution and even less thought. That explains a bit.

So tell me, "Bart": Why should I address someone else's arguments, presented somewhere else, and mangled, cut, and pasted here? Wouldn't it be better to just cite the original and let them speak for themselves?

Cheers,
 

Bart,

You are incorrect in stating that "Omar's attorneys never attempted to use habeas corpus to release Omar during his detention over the past 2 years. It was only when the US military notified Omar's attorneys that they intended to release Omar into Iraqi custody for a trial that Omar's attorneys acted." His attorneys filed his Habeas petition in December of 2005, more than a year before he was set to be transferred to Iraqi custody. Check your facts.

On another note, although you are correct that the Geneva Conventions only afford Mr. Omar a status hearing and status determination by military review, the Geneva Conventions are not necessarily his only rights in this case. The argument you raised is the same argument the Goverment argued in Rasul, which the Supreme Court rejected. In Rasul, the Court ruled that the petitioner was entitled to due process which trumped the requirements of the Geneva Conventions. Rasul, of course, differs from this case in that it involved a non-citizen in Guantanamo.

In Omar, with jurisdiction established, the federal court will have to first determine what rights Omar has as an American citizen under the Constitution and then measure the process he has been afforded thusfar against the rights he has. That the process thusfar complies with the Geneva Conventions is not relevant to the extent of his due process rights.
 

Dan R. said...

Bart, You are incorrect in stating that "Omar's attorneys never attempted to use habeas corpus to release Omar during his detention over the past 2 years. It was only when the US military notified Omar's attorneys that they intended to release Omar into Iraqi custody for a trial that Omar's attorneys acted." His attorneys filed his Habeas petition in December of 2005, more than a year before he was set to be transferred to Iraqi custody. Check your facts.

Page five of the DC Cicuit opinion notes that Omar's petition sought both his release and to enjoin his release to the Iraqis. Consequently, it was filed in response to the military's intent to release him to the Iraqis, even of that was a year ahead of the release date. The point I was attempting to make was that Omar's attorneys did not attempt to challenge his prior detention as a combatant so much as to avoid meeting justice before an Iraqi court.

On another note, although you are correct that the Geneva Conventions only afford Mr. Omar a status hearing and status determination by military review, the Geneva Conventions are not necessarily his only rights in this case.

Do you suggest that US law provides Omar with additional process concerning his detention as an enemy combatant for the duration of the hostilities? If so, would you care to tell us what that might be?
 

Omar's goal is to escape justice before an Iraqi court.

Perhaps that comment surmises correctly that is Omar's ultimate "goal," but that is not what is before the courts. Federal courts don't exist to score or meet "goals." Courts exist to hear cases and controversies, in this case a habeas corpus petition. No such "goal" is mentioned as the final remedy in the petitioner's prayer for relief.

The habeas petition asks only that the government be enjoined from transferring Omar to Iraq temporarily, to freeze the status quo while the merits of the underlying petition are being considered. (And so far, that is all that has happened.)

Do you suggest that US law provides Omar with additional process concerning his detention as an enemy combatant for the duration of the hostilities?

At a minimum, Omar is entitled to have his habeas petition decided in the district court, which all three circuit judges agree has jurisdiction in the matter.
 

jao:

The point is not that Omar has a right to file a habeas petition. Rather, the point is that there is no legal basis for Omar to seek to enjoin the very relief which he is seeking under the petition.

Under what basis may a court order Omar detained by the military or deny the Iraqi courts of their jurisdiction over Omar in Iraq? The only relief Omar may receive under the writ is his release from US custody if his detention is illegal. The only body denying Omar his remedy is the court itself.
 

Bart: Under what basis may a court order Omar detained by the military or deny the Iraqi courts of their jurisdiction over Omar in Iraq?

That question is part of what the district court may consider when it examines the merits, the circuit court said: "Omar’s challenge to his transfer is equally justiciable. He argues (1) that the military may not transfer him to Iraqi authorities without treaty or statutory authorization, and (2) that the military lacks such authorization."
 

jao:

C'mon now.

You are arguing process and I am arguing substantive law.

You are arguing that the district court should be able to rule on the merits of Omar's petition, while I am arguing that there are no merits on which the court can rule, no legal remedy which will grant Omar's wish to escape justice in Iraq.
 

["Bart"]: Under what basis may a court order Omar detained by the military or deny the Iraqi courts of their jurisdiction over Omar in Iraq?

[JaO]: That question is part of what the district court may consider when it examines the merits, the circuit court said: "Omar’s challenge to his transfer is equally justiciable. He argues (1) that the military may not transfer him to Iraqi authorities without treaty or statutory authorization, and (2) that the military lacks such authorization."

["Bart"]: jao: C'mon now. You are arguing process and I am arguing substantive law.

You are arguing that the district court should be able to rule on the merits of Omar's petition, while I am arguing that there are no merits on which the court can rule, no legal remedy which will grant Omar's wish to escape justice in Iraq.


Why does "Bart"'s 'argument' here remind me of this?

JaO cited the court's language. You disagree, you need to say why they are wrong....

"M: Oh look, this isn't an argument.
A: Yes it is.
M: No it isn't. It's just contradiction.
A: No it isn't."

Cheers,
 

Bart: You are arguing process and I am arguing substantive law.

You are arguing that the district court should be able to rule on the merits of Omar's petition, while I am arguing that there are no merits on which the court can rule, no legal remedy which will grant Omar's wish to escape justice in Iraq.


If you turn out to be right on the merits, no doubt the courts will ultimately agree with you, and all will be well for the government.

If the courts should agree with Omar's contention that the military lacks authority to turn Omar over to Iraqi authorities, I presume that is not the end of the matter because the U.S government still asserts the authority to hold him as an "enemy combatant." So the habeas process would also test the legitimacy of that claim. It seems to me that only if Omar also overturns that finding, or the government voluntarily releases him from custody, would he be released.
 

JaO said...

If the courts should agree with Omar's contention that the military lacks authority to turn Omar over to Iraqi authorities, I presume that is not the end of the matter because the U.S government still asserts the authority to hold him as an "enemy combatant." So the habeas process would also test the legitimacy of that claim. It seems to me that only if Omar also overturns that finding, or the government voluntarily releases him from custody, would he be released.

You do not need to regurgitate the process once again. There is no dispute over the issues raised in Omar's petitions. Forget about process for the moment and address my point that the government has made this process moot by offering to release Omar, his only legal remedy.

There is no precedent of which I am aware where a court issuing a writ of habeas corpus can either (1) order the government to detain Omar indefinitely to prevent his arrest by Iraqi authorities, (2) enjoin the sovereign Iraqi authorities from arresting Omar for committing crimes on their territory, or (3) order the government to transport Omar out of Iraq where he was captured and release him in a third country.

I am sure if there was any precedent for these remedies, the learned defense counsel or the judges would have offered it. However, perhaps you would like to take a shot at it.

Are you aware of any precedent for the remedies which Omar seeks and I have listed above?

Do you have another legal remedy which I have missed?
 

Bart,

You seem to mistake me for one of Omar's lawyers. If your want to know their arguments, I suggest that you read their briefs as the case goes forward.

So far they have raised the question of military authority to transfer Omar to Iraq, and argued before the D.C. Circuit the threshold question of whether the issue is properly within the scope of habeas review. (See their appellate brief.) Since the D.C. Circuit agreed that these issues are justiciable in this context, I await with interest the arguments that both sides -- especially those of my own government -- will actually advance on the merits of that underlying question.

I have not endorsed anyone's merits arguments, which have not yet even been briefed, and I am interested to see what those arguments are and what occurs when the courts actually consider them. Nor have I predicted an outcome. (After reading the arguments when they are made, I may end up agreeing that Omar can legally be transferred.)

So far, the government has focused on the threshold question of habeas jurisdiction, and lost on that question in the D.C. Circuit. The appeals court said the underlying issues are justiciable in the District Court, contrary to the procedural theory advanced by DOJ. So we will see what happens on the next round.

I note that you have not advanced an argument on the merits of the underlying question, either, other than to assert a conclusion and challenge someone to debate it. I have no interest in playing that game with you because I am not particularly interested in your own unsupported assertions here, but rather in what both sides will assert in a real court and what the court decides.

Bart: Forget about process for the moment and address my point that the government has made this process moot by offering to release Omar, his only legal remedy.

The argument you made -- that handing over Omar while the authority to do so is being litigated under the habeas proceeding itself constitutes a remedy to the habeas petition itself -- was an argument the government made and the D.C. Circuit rejected:

There is, however, an obvious and quite significant difference between transferring Omar to Iraqi authorities and releasing him to walk free from his current detention. If transferred, Omar would remain in custody and detention; if released he might not.

Elsewhere, the majority explained its view of the preliminary injunction under appeal:

Omar did not seek an injunction barring his outright release, nor could he have; he sought an injunction prohibiting his transfer to Iraqi authorities in order to preserve the district court’s jurisdiction to entertain his habeas petition. We thus understand the court to have used the word "remove" to prevent Omar’s transfer in any form, whether by an official handoff or otherwise. Viewed this way, the injunction does not bar a bona fide release of Omar, even if the military releases him inside Iraq.

And Judge Brown's dissent responded in a footnote: ... since the majority finds that an injunction against release was not intended, and I find that it was intended but improper, we all agree that the United States is free to release Omar from custody.

I fully understand that you agree with the government's original argument, are capable of parroting it here, and disagree with the court's holding rejecting it. See the chaplain.
 

Bart,

I note that you have not advanced an argument on the merits of the underlying question, either, other than to assert a conclusion and challenge someone to debate it.

I would have thought that I made it clear that IMHO the underlying question is without merit because the Court cannot grant any remedy except to order the military to kick Omar out the front door of the detention center into the arms of the Iraqi police.

I have no interest in playing that game with you because I am not particularly interested in your own unsupported assertions here, but rather in what both sides will assert in a real court and what the court decides.

You could have fooled me given your series of responses to my posts both here and at the Volkh Conspiracy. May I presume now that this is your last word on the subject?
 

Me: I note that you have not advanced an argument on the merits of the underlying question, either, other than to assert a conclusion and challenge someone to debate it.

Bart: I would have thought that I made it clear that IMHO the underlying question is without merit because the Court cannot grant any remedy except to order the military to kick Omar out the front door of the detention center into the arms of the Iraqi police.

That has nothing to do with the "the merits of the underlying question" I was discussing (along with the circuit court) which is about whether the government has the authority to hand over Omar to Iraqis in the first place. That issue, when it is argued, presumably might involve whatever express bilateral agreements we have with the Iraqi government, the U.N. resolutions cited as authority for our presence, as well as any arguments the administration might make about the 2002 AUMF or inherent executive power. I have not yet seen my own government advance an argument on such issues.

As for the question of whether the U.S. military could "kick Omar out the front door of the detention center into the arms of the Iraqi police," the majority made clear, it is not yet possible to know that would happen:

To begin with, such speculation at the appellate level cannot defeat Omar’s right to a habeas hearing on the lawfulness of his detention and transfer. ... At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities. Nor do we have any idea what would happen to Omar once released. Perhaps he would end up in Iraqi custody, but perhaps he would not. ...

If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him either directly through a formal handoff or indirectly by "releasing" him with a wink-and-a-nod to the Iraqis. ... In any event, we think it exceedingly unlikely that American military officers, sworn to uphold the law and represented by the Justice Department, would evade an order of a United States district court. Indeed, if the district court orders Omar’s release, we are confident that military officials and their lawyers will work in good faith with the district court to fashion an order that, based on then-existing circumstances, ensures his lawful release from American custody.

 

JaO said...

Me: I note that you have not advanced an argument on the merits of the underlying question, either, other than to assert a conclusion and challenge someone to debate it.

Bart: I would have thought that I made it clear that IMHO the underlying question is without merit because the Court cannot grant any remedy except to order the military to kick Omar out the front door of the detention center into the arms of the Iraqi police.

That has nothing to do with the "the merits of the underlying question" I was discussing (along with the circuit court) which is about whether the government has the authority to hand over Omar to Iraqis in the first place.


Before we begin again, I guess you have decided to "play that game" with me. ;^)

Now to the issue at hand...

The lack of alternative remedies has everything to do with the lack of merit to Omar's underlying claim. As I posted above, in order for the District Court to release Omar without the Iraqis arresting him again, it must have the authority (which it does not) to provide one of three remedies:

(1) order the government to detain Omar indefinitely to prevent his arrest by Iraqi authorities, (2) enjoin the sovereign Iraqi authorities from arresting Omar for committing crimes on their territory, or (3) order the government to transport Omar out of Iraq where he was captured and release him in a third country.

The challenge I posted above was for you to show me where the District Court has the authority to order any of these remedies pursuant to a writ of habeas corpus. This is the only question before you.

As for the question of whether the U.S. military could "kick Omar out the front door of the detention center into the arms of the Iraqi police," the majority made clear, it is not yet possible to know that would happen:

"At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities. Nor do we have any idea what would happen to Omar once released. Perhaps he would end up in Iraqi custody, but perhaps he would not. ...


This is willful blindness by the majority to avoid making a tough decision. Omar's brief argues and the military admits that it intends to release Omar to the Iraqis. There is no dispute at all over this fact.

If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him either directly through a formal handoff or indirectly by "releasing" him with a wink-and-a-nod to the Iraqis. ...

Is the majority here suggesting that the District Court can order the US Army to release an al Qaeda terrorist into Iraq territory and bar the military from informing the Iraqis of this release? Based on what authority? Can you imagine our outrage if the Mexicans dumped an al Qaeda terrorist into the United States without informing us of this invasion?
 

Bart: As I posted above, in order for the District Court to release Omar without the Iraqis arresting him again, it must have the authority (which it does not) to provide one of three remedies:

(1) order the government to detain Omar indefinitely to prevent his arrest by Iraqi authorities, (2) enjoin the sovereign Iraqi authorities from arresting Omar for committing crimes on their territory, or (3) order the government to transport Omar out of Iraq where he was captured and release him in a third country.

The challenge I posted above was for you to show me where the District Court has the authority to order any of these remedies pursuant to a writ of habeas corpus. This is the only question before you.


Wow. A three-way strawman! I pass.

The habeas petition seeks no such remedies, and the majority says there is no guarantee that Omar, if released under some hypothetical order, would not wind up in Iraqi custody.
 

Bart,

Your three part question highlights quite effectively the peculiar posture Omar finds himself in. But I am not convinced. I think you are asking the wrong question.

You should be asking on what authority did the court exercise its discretion in granted the preliminary injunction. That question is easily answerable.

Omar sought Habeas to challenge his detention. While you are right that his release would moot his habeas case, that issue was not before the district court. Solely, the district court had to consider whether to enjoin his transfer so as to entertain his habeas case. As you may already know, courts routinely preserve the status quo so as to afford the parties an opportunity to brief the merits.

Your questions go to remedies. And like jurisdiction, the court must consider whether effective remedies as an initial matter. But before reaching that issue, the court was faced with Omar's petition for an injunction.

In that regard, the district court opinion does not say that it has jurisdiction, it does not say that there are effective remedies, and it does not posit the likely outcome of the case. Solely, the district court was concerned with preserving the status quo so as to consider these other matters at a later time.

Your questions, which closely mirror Judge Brown's sentiments, are premature.

In that vein, it is interesting to note that the Circuit found jurisdiction though the Judge Urbina did not. Judge Urbina merely noted that the issues were complex enough to warrant an injunction.
 

JaO [quoting the court opinion]:

"Omar did not seek an injunction barring his outright release, nor could he have; he sought an injunction prohibiting his transfer to Iraqi authorities in order to preserve the district court’s jurisdiction to entertain his habeas petition. We thus understand the court to have used the word "remove" to prevent Omar’s transfer in any form, whether by an official handoff or otherwise. Viewed this way, the injunction does not bar a bona fide release of Omar, even if the military releases him inside Iraq."

In some ways this is analogous to what a court might do in a habeas corpus hearing where the gummint tries to foil court review by moving the prisoner around from jurisdiction to jurisdiction ... hmmm, where did I see something like that recently? Oh, yeah. They mentioned there that such a procedural dodge, if intentional, might be illegal and that the courts would retain jurisdiction as becessary to stop such ... and I'd presume authority to order the prisoner not be moved while the matter was soretd out.

Cheers,
 

Jao [qoting the court]:

At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities.

They're being polite. They read newspapers. They saw what the U.S. gummint did in the Saddam Hussein execution.

Cheers,
 

"Bart" DePalma:

Omar's brief argues and the military admits that it intends to release Omar to the Iraqis.

You misspelled "threatens". This is part of their 'legal' strategy; make it not worth his while to pursue his legal rights so as to win "outside the law".... Seems to be a theme of the Dubya maladministration.

OT:
Speaking of the U.S. military, perhaps in your experience as a military man and an intelligence officer, "Bart", any opinion on why Iran would stencil dates in U.S. format (MM/DD/YYYY) and with English language on their munitions?

Cheers,
 

Simple answers to rhetorical questions:

["Bart"]: Is the majority here suggesting that the District Court can order the US Army to release an al Qaeda terrorist into Iraq territory and bar the military from informing the Iraqis of this release?

No.

Cheers,
 

Great article! I think human rights should not be limited in any case.

Personal Injury Attorney Houston
 

Post a Comment

Home