Posted by Orin Kerr:
DC Circuit Upholds Injunction in Iraqi Transfer Case:
http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#1171048356
Today the D.C. Circuit handed down a divided opinion in [1]Omar v.
Harvey, a case involving a planned transfer of a detainee in Iraq from
U.S. forces to Iraqi officials. It's an interesting case that rests on
some hypertechnical questions, but we may be hearing more about this
case in the future: it not only touches on the role of the courts in
wartime, but it also features a dissent by Judge Janice Rogers Brown
that is sure to draw attention if another vacancy opens on the Supreme
Court.
Shawqi Ahmad Omar was captured by U.S. forces during a raid on
associates of Abu Musab al-Zarqawi. The two sides to the litigation
present different stores of what Omar was doing when captured. The
government believes Omar was an insurgent who is part of Zarqawi�s
network, and states that weapons and IED-making materials were found
in his Baghdad home. Omar contends this is wrong, and that he came to
Iraq after the invasion simply to seek work and was about to leave the
country before he was arrested by U.S. forces. Both sides seem to
agree that Omar has dual American/Jordanian citizenship; he received
U.S. citizenship after marrying a U.S. citizen, the former Sandra Kay
Sulzle.
Omar's family brought a habeas corpus action in the U.S. District
Court asking the Court to order Omar's release from detention, or in
the alternative to order Omar to be brought before a U.S. Court and
not transfered out of U.S. custody to try to evade habeas corpus.
Meanwhile, a military review panel in Iraq concluded that Omar was an
enemy combatant, and the miltary decided to transfer him to the
Central Criminal Court of Iraq, a Baghdad-based Iraqi criminal court.
Omar's family sought a TRO and later a preliminary injunction ordering
the military not to transfer Omar out of U.S. custody while the case
was before the U.S. Courts. The district court agreed, entering a
preliminary injunction stating that the government "shall not remove
[Omar] from United States or MNF-I custody, or take any other action
inconsistent with this court�s memorandum opinion."
Today's decision is the appeal from the injuncion, and presented two
issues: First, was the injunction procedurally improper because
detention of enemy combatants in wartime is a political question, and
second, was the district court's preliminary injunction an abuse of
discretion on the merits? All three Judges on the panel -- Tatel,
Edwards, and Brown -- agreed that the legality of the detention was
not a political question. However, they divided on whether the
injunction was an abuse of discretion on the merits. Much of the
decision is hypertechnical, for example, on what just what the
District Court meant when it ordered that Omar could not be "removed."
Did that mean that he could not be transfered out of U.S. custody, or
did it actually mean that the Court was ordering that Omar could not
be transfered or released?. Judge Tatel's majority opinion concludes
that it meant only the former, and that the injunction is proper.
Judge Brown dissented on the propriety of the injunction. Given that
Brown is often mentioned as a future pick if the Bush Administration
has another Supreme Court vacancy to fill, and that the President
presumably is very interested in Judge Brown's views of Executive
power -- and that Judge Brown knows all of this -- her dissent is
particularly worth reading. As far as I know, this is the first
opinion on a hot-button question that she has written as a federal
Judge. Here are some excerpts that you can be sure will be read
closely by the White House if another vacancy opens:
In addressing the propriety of this injunction, I note first that
we heard arguments in this case on the portentous date of September
11, 2006, precisely five years after the terrorist attacks that so
fundamentally altered this country�s attitude toward security. No
longer could we sit back and consider ourselves safe from foreign
enemies so long as no other nation wished us harm. The Founders
envisioned wars in the paradigm of the time, with official
declarations from heads of states announcing the beginning and end
of hostilities. In today�s world, by contrast, global alliances of
non-state actors can visit death and destruction on the American
homeland without warning, on a scale equal to that seen in
conventional wars. In such an environment, it would be dangerous
folly to deny what this case involves: the capture of an alleged
enemy combatant by American military personnel operating in a war
zone.
. . . .
The majority�s logic proceeds as follows: (1) An injunction
barring transfer is permissible. (2) Unrestricted intergovernmental
communication could convert release into transfer. (3) Therefore,
federal courts must have the power to limit intergovernmental
communication, in order to give effect to the main injunction
against transfer. Summarizing its position, the majority declares:
"The United States may certainly share information with other
sovereigns . . . , but it may not do so in a way that converts
Omar�s 'release' into a transfer that violates a court order." Id.
This is a striking conclusion. The majority in effect holds that,
in the proper circumstance, a single unelected district court judge
can enjoin the United States military from sharing information with
an allied foreign sovereign in a war zone and may do so with the
deliberate purpose of foiling the efforts of the foreign sovereign
to make an arrest on its own soil, in effect secreting a fugitive
to prevent his capture. The trespass on Executive authority could
hardly be clearer.
. . . .
[FN] I do not make light of Omar�s assertion he will receive
severe treatment as a result of Iraqi detention. To recognize that
our courts lack the authority to dictate the actions of a foreign
sovereign is not to sanction human rights violations. As part of a
tripartite system of government, we need not assume the political
branches are oblivious to these concerns. Indeed, the other
branches possess significant diplomatic tools and leverage the
judiciary lacks.
Thanks to [2]How Appealing for the link.
References
1. http://pacer.cadc.uscourts.gov/docs/common/opinions/200702/06-5126a.pdf
2. http://howappealing.law.com/
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