Just as it argues in the cases brought by detainees at Guantánamo Bay, the Bush administration maintains in these cases that federal courts lack jurisdiction to grant petitions for release filed by civilians in military custody in Iraq.
The administration’s argument prevailed before one three-judge panel of the federal appeals court here and was rejected by another within a two-month period this year, a highly unusual situation that the justices agreed to resolve by hearing appeals from both rulings.
One appeal was filed by an Iraqi-born naturalized United States citizen, Mohammad Munaf, who has been convicted and sentenced to death on kidnapping charges by the Central Criminal Court of Iraq. He is being held by the United States military and has filed a habeas corpus petition challenging the impending transfer that will permit the Iraqis to carry out the sentence.
Both the Federal District Court here and the United States Court of Appeals for the District of Columbia Circuit held that federal courts had no jurisdiction to intervene under these circumstances.
The second case was filed by Solicitor General Paul D. Clement, appealing a decision that has blocked the transfer to the Iraqis of another naturalized United States citizen, Shawqi Ahmad Omar. Mr. Omar, born in Kuwait, was arrested by the United States military at his home in Baghdad in 2004 and was determined by a military panel to be an enemy combatant and a “security internee under the law of war.”
He has been held since then in Abu Ghraib prison and elsewhere in Iraq in the custody of military officials, who want to turn him over to the Iraqis for trial on terrorism charges.
Judge Ricardo M. Urbina of the Federal District Court here ruled that he had jurisdiction to decide Mr. Omar’s petition for habeas corpus. He granted a preliminary injunction barring the transfer in order to give himself time to consider the petition.
The appeals court panel upheld Judge Urbina’s order. Noting that Mr. Omar had not been convicted of a crime, Judge David S. Tatel wrote for the appeals court that the district court’s jurisdiction was “abundantly clear” and that “challenging extrajudicial detention is among the most fundamental purposes of habeas.” Judge Harry T. Edwards joined the opinion. Judge Janice Rogers Brown agreed on the jurisdictional question, but said in dissent that the court should not have issued the injunction.
The administration’s Supreme Court appeal, Geren v. Omar, No. 07-394, describes the case as one of “exceptional importance,” adding, “As far as the government is aware, no court has previously sanctioned such a far-reaching and internationally unsettling exercise of American judicial power.”
Both cases require the Supreme Court to confront a World War II-era precedent on the availability of habeas corpus, the age-old legal method of challenging one’s confinement. In Hirota v. MacArthur, decided in 1948, the court ruled in an opaque nine-sentence opinion that Japanese citizens convicted and sentenced by an international military tribunal in Japan did not have access to habeas corpus in United States courts.
The appeals court panel that ruled last April in the Munaf case said the Hirota decision was binding and left the court no choice but to rule against Mr. Munaf. “We are not free to disregard Hirota simply because we may find its logic less than compelling,” Judge David B. Sentelle wrote in an opinion that was joined by Judge Brett M. Kavanaugh.
Judge A. Raymond Randolph wrote separately to say that while he believed the court did have jurisdiction to decide the question, Mr. Munaf was not entitled to habeas corpus because Iraq, as a sovereign nation, was entitled to prosecute and sentence someone who violated its laws. Mr. Munaf was convicted of helping to arrange the kidnapping of a group of Romanian journalists in Iraq.
In his appeal, Munaf v. Geren, No. 06-1666, his lawyers are urging the Supreme Court to overturn the Hirota decision, which they say has been undermined by the court’s own recent rulings on the rights of enemy combatants.
In any event, the lawyers tell the justices, the military should not be permitted to detain an American citizen overseas “or dispatch him to his death at the hands of another sovereign, with no obligation to demonstrate the lawfulness of either his imprisonment or his threatened transfer.”
The two cases will be argued in March. They were among seven new cases the court granted on a busy Friday afternoon. These were among the others:
Bomber’s Sentence
The court accepted a government appeal in the case of Ahmed Ressam, an Algerian who was convicted of plotting to bomb Los Angeles International Airport after entering the country from British Columbia on the eve of the millennium. He was convicted on nine counts and sentenced to 22 years in prison.
In January of this year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, overturned the conviction on one of the counts, vacated the entire sentence and ordered resentencing on the remaining eight counts. The overturned conviction was for carrying explosives “during the commission of any felony.” That offense carries a 10-year minimum sentence.
It was not disputed that Mr. Ressam carried explosives in the trunk of his car. The felony to which the indictment linked that act was making a false statement to a customs official; Mr. Ressam had signed a false name on his customs declaration. The question in the case, United States v. Ressam, No. 07-455, is one of statutory interpretation: whether the government has to establish that the explosives were carried “in relation to” the false statement.
The Ninth Circuit said the statute required the showing of such a relationship. The government argues that this is a misinterpretation that “could significantly diminish the statute’s usefulness as a tool for combating terrorism-related offenses.”
Disability Rights
The court will decide what rights workers have under the Americans With Disabilities Act if, because of a disability, they can no longer perform duties of a particular job. The law requires employers to offer “reasonable accommodation,” including “reassignment to a vacant position” for which the worker is qualified.
The question in this case, Huber v. Wal-Mart Stores Inc., No. 07-480, is whether that provision entitles the employee to the new position, or whether it just allows the employee to compete with others for the position. The United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that the law did not give a “mandatory preference” but simply entitled the worker to seek the new job. Other federal circuits have concluded the opposite.
Self-Representation
In Indiana v. Edwards, No. 07-208, the court will decide the circumstances under which a mentally ill defendant, if found competent to stand trial, is entitled to represent himself. Under Supreme Court precedents, self-representation at trial is a constitutional right.