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Today's Other Habeas Decision:

Overshadowed by the Supreme Court's 5-4 decision in Boumediene was the Court's unanimous opinion in Munaf v. Geren, another habeas case arising out of the war on terror. In Munaf, the Court considered whether U.S. courts have jurisdiction over habeas corpus petitions filed on behalf of U.S. citizens challenging their detention in Iraq by the U.S. military and, if so, whether a U.S. district court may issue an injunction prohibiting the military from transferring such individuals to Iraqi authorities.

In an opinion by Chief Justice Roberts, the Court first concluded that U.S. courts may entertain habeas petitions brought by U.S. citizens in military custody overseas. The Court rested its decision on 28 U.S.C. 2241(c), which explicitly extends such jurisdiction to habeas petitions brought by individuals held "in custody under or by color of the authority of the United States," or "in custody in violation of the Constitution or laws or treaties of the United States." The government had sought to argue that this provision does not apply here because U.S. forces in Iraq are participating in a multi-national force, but the Court readily dispatched this argument noting that the petitioners "are American citizens held overseas in the immediate 'physical custody' of American soldiers who answer only to an American chain of command."

While the Court upheld federal jurisdiction, it nonetheless rejected the petitioners' ultimate claims, concluding that district courts could not issue the injunctions sought. The traditional remedy for a habeas violation is release. Yet that would not do the petitioners much good here, as to be released by U.S. troops would place the petitioners in danger of being apprehended by Iraqi authorities, producing the precise result they sought to avoid -- potential detention and trial by the Iraqi government. As Roberts concluded, "Habeas corpus does not require the United States to shelter such fugitives from the criminal justice of the sovereign with authority to prosecute them." That the petitioners alleged they could be subject to torture or other inhumane treatment may make them more sympathetic, but the Court rejected any suggestion such fears strengthened their legal claim. Thus, in the end, the Court concluded that the petitioners "state no claim in their habeas petitions for which relief can be granted," and ordered their petitions dismissed.

Cornellian (mail):
The government had sought to argue that this provision does not apply here because U.S. forces in Iraq are participating in a multi-national force, but the Court readily dispatched this argument noting that the petitioners "are American citizens held overseas in the immediate 'physical custody' of American soldiers who answer only to an American chain of command."

So the U.S. government argued it had the authority hold US citizens indefinitely, without habeas and without charges?
6.12.2008 10:53pm
George Weiss (mail) (www):
id say the us gov had been not only arguing but doing that for a while (padila before his real trial)
6.12.2008 11:09pm
Dylanfa (mail) (www):
No, it argued that a multinational military force of which the US was but one component could.
6.12.2008 11:09pm
jccamp (mail):
"...it had the authority hold US citizens indefinitely..."

No, I think the government's argument was that the mentioned citizens were being held by a multi-national force, of which the U S forces were only one component. The court pretty much demolished that argument, since the U S forces in Iraq answer to a U S chain of command. The multi-national forces thing was a fig leave, so to speak.
6.12.2008 11:11pm
jccamp (mail):
"...it had the authority hold US citizens indefinitely..."

The second important point is that the U S forces did not want to hold either citizen at all. The military wanted to release both men to the custody of the Iraq civil government for trial, since Iraq accused both U S citizens of committing crimes while inside iraq. Although what either man wanted from the courts is not completely clear, what they did not want is obvious, i.e. to be handed over the the Iraq government. Apparently, the men wanted to be sent back to the U S and released.

In any event, the USSC ruling allows the military to hand both men over the Iraq.
6.12.2008 11:22pm
David Schwartz (mail):
Is there really no way a person in the physical custody of US authorities overseas can request asylum and protection from torture?
6.12.2008 11:29pm
Benjamin Davis (mail):
Yes if habeas attaches they (citizen/noncitizen) can ask for it - the court seems to leave that open but in this case did not buy the argument.

Best,
Ben
6.12.2008 11:45pm
David M. Nieporent (www):
Is there really no way a person in the physical custody of US authorities overseas can request asylum and protection from torture?
There is a way. He can request it. From the political branches. He just can't use habeas corpus as an argument to get a court to protect him from it. Habeas is not available to prevent release.

(Actually, the Court left open the possibility that the prisoners could amend their pleadings to request relief under the FARR Act, which bars returning people to places where they're likely to be tortured. But at the same time pointed out that such relief may not be available in the situation in question.)
6.12.2008 11:45pm
Tyrant King Porn Dragon (mail):
I'd hate to think that the United States was turning over its own citizens to Iraqi government torturers in order to promote the illusion of Iraqi sovereignty.

For that matter, I hate to think that American troops are propping up an Iraqi puppet government that employs torturers and death squads for the sake of sectarian ethnic cleansing.

I've had to hate to think a lot of things recently. Sigh.
6.13.2008 1:40am
Richard Aubrey (mail):
yeah, well, ty. There's the law of unintended consequences. The Uighurs were captured and eventually came into our hands. They had been fighting the Chinese. Not us. We have no right to hold them. None. Maybe the folks who want us to release all these guys should have thought ahead a bit.
But, considering Gitmo is equal to or worse than Dachau or the Killing Fields, I forget which, the lefties didn't consider that other places might actually be unpleasant. IOW, the lefties ended up believing themselves. And here you are, ty, making value judgments about other cultures. For shame.
6.13.2008 10:22am
Dave N (mail):
TKPG,

Any evidence for any of the things you hate to think about? Any at all?
6.13.2008 10:22am
Bob from Ohio (mail):
Afganistan requests to try the non-US citizens at Gitmo next Monday. We send them there next Tuesday. Hmm?
6.13.2008 3:11pm