Wednesday, June 22, 2011
A three-judge panel of the D.C. Circuit ruled Tuesday in Omar v. McHugh that an American citizen held in military custody in Iraq has no right to judicial review of conditions in Iraq, the country where he is to be transferred. The majority thus rejected his habeas petition; Judge Griffith, in concurrence, would have reached the merits and rejected them.
Petitioner Omar is the same Omar who was part of Munaf v. Geren, the 2008 Supreme Court case holding that federal courts may not exercise habeas jurisdiction to enjoin the government from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign for criminal prosecution. In Munaf, Omar argued that he would be tortured if transferred to Iraqi authorities, that he therefore had a right under "the substantive component of the Due Process Clause" against transfer, and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment if transferred. The Court rejected these arguments.
Omar came back with new statutory and constitutional arguments, but the D.C. Circuit rejected them, as well. Omar argued the Foreign Affairs Reform and Restructing Act of 1998 (FARR), which implements Article 3 of the Convention Against Torture, granted him a right to judicial review. But the court ruled that the FARR provides judicial review of conditions in the receiving country only in the immigration context, for aliens seeking judicial review of removal, and not for military transferees like Omar. (The REAL ID Act of 2005 made the limited scope of judicial review even clearer.) The majority thus ruled that neither the FARR nor the REAL ID Act provided for judicial review here.
As to the Constitution, Omar argued that habeas alone gave him the right to judicial review (whereas the Munaf Court held only that he had no right under habeas and due process), and that he has a substantive due process right to judicial review (whereas the Munaf Court held only that he had no procedural due process right), among other arguments. The court rejected them all, writing that his attempts to distinguish Munaf failed, that his attempts to craft a right out of constitutional and statutory combinations failed, and that the tradition of habeas in like circumstances cut against him. ("Those facing extradition traditionally have not been able to block transfer based on conditions in the receiving country. . . . Similarly, military transferees traditionally have not been able to raise habeas claims to prevent transfer based on conditions in the receiving country." Op. at 11.) The majority thus rejected Omar's habeas claim (although it reminded us that Congress could extend habeas and craft judicial review of conditions in a receiving country for military transferees (in addition to the already existing right for alien transferees), if it wanted).
Judge Griffith would have granted habeas and heard the merits, because "the FARR Act 'trigger[s] constitutional habeas' by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful. When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful." Griffith, concurring, at 1. But Judge Griffith nevertheless would have denied relief:
Omar cannot be "return[ed]" to Iraq for a simple reason: "he is already there." The U.S. military arrested him in Iraq, and he was subsequently convicted in an Iraqi court for violating Iraqi law. He now seeks to use the FARR Act to prevent the Iraqi authorities from bringing him to justice, which would effectively "defeat the criminal jurisdiction of a foreign sovereign." Because there is nothing in the FARR Act to suggest that Congress could have intended such a result, I concur in the majority's judgment.
Griffith, concurring, at 8 (citations to Munaf omitted).