Posted by Orin Kerr:
DC Circuit Upholds Injunction in Iraqi Transfer Case:

   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
     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
     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
       . . . .
       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.



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