OPINION OF THE COURT
MUNAF V. GEREN
553 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NOS. 06-1666 AND 07-394
MOHAMMAD MUNAF, et al., PETITIONERS
06–1666
v.
PETE GEREN, SECRETARY OF THE ARMY,
et al.
PETE GEREN, SECRETARY OF THE ARMY,
et al., PETITIONERS
07–394
v.
SANDRA K. OMAR and AHMED S. OMAR, as next
friends of SHAWQI AHMAD OMAR
on writs of certiorari to the united states court
of appeals for the district of columbia circuit
[June 12, 2008]
Chief Justice Roberts delivered
the opinion of the Court.
The Multinational Force–Iraq
(MNF–I) is an international coalition force operating in Iraq
composed of 26 different nations, including the United States. The
force operates under the unified command of United States military
officers, at the request of the Iraqi Government, and in accordance
with United Nations (U. N.) Security Council Resolutions.
Pursuant to the U. N. mandate, MNF–I forces detain individuals
alleged to have committed hostile or warlike acts in Iraq, pending
investigation and prosecution in Iraqi courts under Iraqi law.
These consolidated cases concern the
availability of habeas corpus relief arising from the MNF–I’s
detention of American citizens who voluntarily traveled to Iraq and
are alleged to have committed crimes there. We are confronted with
two questions.
First, do United States courts have
jurisdiction over habeas corpus petitions filed on behalf of
American citizens challenging their detention in Iraq by the MNF–I?
Second, if such jurisdiction exists, may district courts
exercise that jurisdiction to enjoin the MNF–I from transferring
such individuals to Iraqi custody or allowing them to be tried
before Iraqi courts?
We conclude that the habeas statute extends to
American citizens held overseas by American forces operating
subject to an American chain of command, even when those forces are
acting as part of a multinational coalition. Under circumstances
such as those presented here, however, habeas corpus provides
petitioners with no relief.
I
Pursuant to its U. N.
mandate, the MNF–I has “ ‘the authority to take all necessary
measures to contribute to the maintenance of security and stability
in Iraq.’ ” App. G to Pet. for Cert. in 07–394, p. 74a,
¶10 (quoting U. N. Security Council, U. N. Doc.
S/Res/1546, ¶10 (June 2004)). To this end, the MNF–I engages in a
variety of military and humanitarian activities. The multinational
force, for example, conducts combat operations against insurgent
factions, trains and equips Iraqi security forces, and aids in
relief and reconstruction efforts.
MNF–I forces also detain
individuals who pose a threat to the security of Iraq. The
Government of Iraq retains ultimate responsibility for the arrest
and imprisonment of individuals who violate its laws, but because
many of Iraq’s prison facilities have been destroyed, the MNF–I
agreed to maintain physical custody of many such individuals during
Iraqi criminal proceedings. MNF–I forces are currently holding
approximately 24,000 detainees. An American military unit, Task
Force 134, oversees detention operations and facilities in Iraq,
including those located at Camp Cropper, the detention facility
currently housing Shawqi Omar and Mohammad Munaf (herein- after
petitioners). The unit is under the command of United States
military officers who report to General David Petraeus.
A
Petitioner Shawqi Omar, an
American-Jordanian citizen, voluntarily traveled to Iraq in 2002.
In October 2004, Omar was captured and detained in Iraq by U. S.
military forces operating as part of the MNF–I during a raid of his
Baghdad home. Omar is believed to have provided aid to Abu Musab
al-Zarqawi—the late leader of al Qaeda in Iraq—by facilitating his
group’s connection with other terrorist groups, bringing foreign
fighters into Iraq, and planning and executing kidnappings in Iraq.
MNF–I searched his home in an effort to capture and detain
insurgents who were associated with al-Zarqawi. The raid netted an
Iraqi insurgent and four Jordanian fighters along with explosive
devices and other weapons.
The captured insurgents gave
sworn statements implicating Omar in insurgent cell activities. The
four Jordanians testified that they had traveled to Iraq with Omar
to commit militant acts against American and other Coalition
Forces. Each of the insurgents stated that, while living in Omar’s
home, they had surveilled potential kidnap victims and conducted
weapons training. The insurgents explained that Omar’s fluency in
English allowed him to lure foreigners to his home in order to
kidnap and sell them for ransom.
Following Omar’s arrest, a three-member MNF–I
Tribunal composed of American military officers concluded that Omar
posed a threat to the security of Iraq and designated him a
“security internee.” The tribunal also found that Omar had
committed hostile and warlike acts, and that he was an enemy
combatant in the war on terrorism. In accordance with Article 5 of
the Geneva Convention, Omar was permitted to hear the basis for his
deten- tion, make a statement, and call immediately available
witnesses.
In addition to the review of his detention by
the MNF–I Tribunal, Omar received a hearing before the Combined
Review and Release Board (CRRB)—a nine-member board composed of six
representatives of the Iraqi Government and three MNF–I officers.
The CRRB, like the MNF–I Tribunal, concluded that Omar’s continued
detention was necessary because he posed a threat to Iraqi
security. At all times since his capture, Omar has remained in the
custody of the United States military operating as part of the
MNF–I.
Omar’s wife and son filed a next-friend
petition for a writ of habeas corpus on Omar’s behalf in the
District Court for the District of Columbia.
Omar v.
Harvey, 479 F. 3d 1, 4 (CADC 2007). After the
Department of Justice informed Omar that the MNF–I had decided to
refer him to the Central Criminal Court of Iraq (CCCI) for criminal
proceedings, his attorney sought and obtained a preliminary
injunction barring Omar’s “remov[al] … from United States or MNF-I
custody.” App. to Pet. in No. 07–394,
supra, at 59a. The
order directed that
“the [United States], their agents, servants,
employees, confederates, and any persons acting in concert or
participation with them, or having actual or implicit knowledge of
this Order … shall not remove [Omar] from United States or MNF-I
custody, or take any other action inconsistent with this court’s
memorandum opinion.”
Ibid.
The United States appealed
and the Court of Appeals for the District of Columbia Circuit
affirmed. Omar, 479 F. 3d 1. The Court of Appeals first
upheld the District Court’s exercise of habeas jurisdiction,
finding that this Court’s decision in
Hirota v.
MacArthur,
338 U. S. 197 (1948)
(
per curiam), did not preclude review. The Court of
Appeals distinguished
Hirota on the ground that Omar,
unlike the petitioner in that case, had yet to be convicted by a
foreign tribunal. 479 F. 3d, at 7–9. The Court of Appeals
recognized, however, that the writ of habeas corpus could not be
used to enjoin release.
Id., at 11. It therefore construed
the injunction only to bar transfer to Iraqi custody and upheld the
District Court’s order insofar as it prohibited the United States
from: (1) transferring Omar to Iraqi custody,
id., at
11–13; (2) sharing details concerning any decision to release Omar
with the Iraqi Government,
id., at 13; and (3) presenting
Omar to the Iraqi Courts for investigation and prosecution,
id., at 14.
Judge Brown dissented. She joined the panel’s
jurisdictional ruling, but would have vacated the injunction
because, in her view, the District Court had no authority to enjoin
a transfer that would allow Iraqi officials to take custody of an
individual captured in Iraq—something the Iraqi Government
“undeniably h[ad] a right to do.”
Id., at 19. We granted
certiorari. 552 U. S. ___ (2007).
B
Petitioner Munaf, a citizen of
both Iraq and the United States, voluntarily traveled to Iraq with
several Romanian journalists. He was to serve as the journalists’
translator and guide. Shortly after arriving in Iraq, the group was
kidnapped and held captive for two months. After the journalists
were freed, MNF–I forces detained Munaf based on their belief that
he had orchestrated the kidnappings.
A three-judge MNF–I Tribunal
conducted a hearing to determine whether Munaf’s detention was
warranted. The MNF–I Tribunal reviewed the facts surrounding
Munaf’s capture, interviewed witnesses, and considered the
available intelligence information. Munaf was present at the
hearing and had an opportunity to hear the grounds for his
detention, make a statement, and call immediately available
witnesses. At the end of the hearing, the tribunal found that Munaf
posed a serious threat to Iraqi security, designated him a
“security internee,” and referred his case to the CCCI for criminal
investigation and prosecution.
During his CCCI trial, Munaf admitted on
camera and in writing that he had facilitated the kidnapping of the
Romanian journalists. He also appeared as a witness against his
alleged co-conspirators. Later in the proceedings, Munaf recanted
his confession, but the CCCI nonetheless found him guilty of
kidnapping. On appeal, the Iraqi Court of Cassation vacated Munaf’s
conviction and remanded his case to the CCCI for further
investigation.
In re Hikmat, No. 19/Pub. Comm’n/2007,
p. 5 (Feb. 19, 2008). The Court of Cassation directed that
Munaf was to “remain in custody pending the outcome” of further
criminal proceedings.
Ibid.
Meanwhile, Munaf ’s sister filed a
next-friend petition for a writ of habeas corpus in the District
Court for the District of Columbia.
Mohammed v.
Harvey, 456 F. Supp. 2d 115, 118 (2006). The
District Court dismissed the petition for lack of jurisdiction,
finding that this Court’s decision in
Hirota controlled:
Munaf was “in the custody of coalition troops operating under the
aegis of MNF–I, who derive their ultimate authority from the United
Nations and the MNF-I member nations acting jointly.” 456
F. Supp. 2d, at 122.
The Court of Appeals for the District of
Columbia Circuit affirmed. 482 F. 3d 582 (2007) (hereinafter
Muraf). The Court of Appeals, “[c]onstrained by
precedent,” agreed with the District Court that
Hirota
controlled and dismissed Munaf’s petition for lack of jurisdiction.
482 F. 3d, at 583. It distinguished the prior opinion in
Omar on the ground that Munaf, like the habeas petitioner
in
Hirota but unlike Omar, had been convicted by a foreign
tribunal. 482 F. 3d
, at 583–584.
Judge Randolph concurred in the judgment.
Id., at 585. He concluded that the District Court had
improperly dismissed for want of jurisdiction because “Munaf is an
American citizen . . . held by American forces overseas.”
Ibid. Nevertheless, Judge Randolph would have held that
Munaf’s habeas petition failed on the merits.
Id., at 586.
He relied on this Court’s holding in
Wilson v.
Girard,
354 U. S. 524, 529 (1957), that a
“sovereign nation has exclusive jurisdiction to punish offenses
against its laws committed within its borders,” and concluded that
the fact that the United States was holding Munaf because of his
conviction by a foreign tribunal was conclusive.
Ibid.[
Footnote 1]
We granted certiorari and consolidated the
Omar and
Munaf cases. 552 U. S. ___ (2007).
II
The Solicitor General argues that
the federal courts lack jurisdiction over the detainees’ habeas
petitions because the American forces holding Omar and Munaf
operate as part of a multinational force. Brief for Federal Parties
17–36. The habeas statute provides that a federal district court
may entertain a habeas application by a person 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.” 28 U. S. C. §§2241(c)(1), (3). MNF–I forces,
the argument goes, “are not operating solely under United States
authority, but rather ‘as the agent of’ a multinational force.”
Brief for Federal Parties 23 (quoting
Hirota,
supra, at 198). Omar and Munaf are thus held pursuant to
international authority, not “the authority of the United States,”
§2241(c)(1), and they are therefore not within the reach of the
habeas statute. Brief for Federal Parties 17–18.[
Footnote 2] The United States
acknowledges that Omar and Munaf are American citizens held
overseas in the immediate “ ‘physical custody’ ” of
American soldiers who answer only to an American chain of command.
Id., at 21. The MNF–I itself operates subject to a unified
American command.
Id., at 23. “[A]s a practical matter,”
the Government concedes, it is “the President and the Pentagon, the
Secretary of Defense, and the American commanders that control what
… American soldiers do,” Tr. of Oral Arg. 15, including the
soldiers holding Munaf and Omar. In light of these admissions, it
is unsurprising that the United States has never argued that it
lacks the authority to release Munaf or Omar, or that it requires
the consent of other countries to do so.
We think these concessions the
end of the jurisdictional inquiry. The Government’s argument—that
the federal courts have no jurisdiction over American citizens held
by American forces operating as multinational agents—is not easily
reconciled with the text of §2241(c)(1). See
Duncan v.
Walker,
533
U. S. 167, 172 (2001) (“We begin, as always, with the language
of the statute”). That section applies to persons held “in custody
under or by color of the authority of the United States.”
§2241(c)(1). An individual is held “in custody” by the United
States when the United States official charged with his detention
has “the power to produce” him.
Wales v.
Whitney,
114 U. S. 564,
574 (1885); see also §2243 (“The writ . . . shall be directed to
the person having custody of the person detained”). The disjunctive
“or” in §2241(c)(1) makes clear that actual custody by the United
States suffices for jurisdiction, even if that custody could be
viewed as “under … color of” another authority, such as the
MNF–I.
The Government’s primary contention is that
the District Courts lack jurisdiction in these cases because of
this Court’s decision in
Hirota. That
slip of a case cannot bear the weight the Government would place on
it. In
Hirota, Japanese citizens sought permission to file
habeas corpus applications directly in this Court. The petitioners
were noncitizens detained in Japan. They had been convicted and
sentenced by the International Military Tribunal for the Far
East—an international tribunal established by General Douglas
MacArthur acting, as the Court put it, in his capacity as “the
agent of the Allied Powers.” 338 U. S., at 198. Although those
familiar with the history of the period would appreciate the
possibility of confusion over who General MacArthur took orders
from, the Court concluded that the sentencing tribunal was “not a
tribunal of the United States.”
Ibid. The Court then held
that, “[u]nder the foregoing circumstances,” United States courts
had “no power or authority to review, to affirm, set aside or annul
the judgments and sentences” imposed by that tribunal.
Ibid. Accordingly, the Court denied petitioners leave to
file their habeas corpus applications, without further legal
analysis.
Ibid.
The Government argues that the multinational
character of the MNF–I, like the multinational character of the
tribunal at issue in
Hirota, means that it too is not a
United States entity subject to habeas. Reply Brief for Federal
Parties 5–7. In making this claim, the Government acknowledges that
the MNF–I is subject to American authority, but contends that the
same was true of the tribunal at issue in
Hirota. In
Hirota, the Government notes, the petitioners were held by
the United States Eighth Army, which took orders from General
MacArthur, 338 U. S., at 199 (Douglas, J., concurring), and were
subject to an “unbroken” chain of U. S. command, ending with the
President of the United States,
id., at 207.
The Court in
Hirota, however, may
have found it significant, in considering the nature of the
tribunal established by General MacArthur, that the Solicitor
General expressly contended that General MacArthur, as pertinent,
was not subject to United States authority. The facts suggesting
that the tribunal in
Hirota was subject to an “unbroken”
United States chain of command were not among the “foregoing
circumstances” cited in the
per curiam opinion disposing
of the case,
id., at 198. They were highlighted only in
Justice Douglas’s belated opinion concurring in the result,
published five months after that
per curiam.
Id.,
at 199, n.*. Indeed, arguing before this Court, Solicitor General
Perlman stated that General MacArthur did not serve “under the
Joint Chiefs of Staff,” that his duty was “to obey the directives
of the Far Eastern Commission and not our War Department,” and that
“no process that could be issued from this court … would have any
effect on his action.” Tr. of Oral Arg. in
Hirota v.
MacArthur, O. T. 1948, No. 239, pp. 42, 50, 51. Here,
in contrast, the Government acknowledges that our military
commanders do answer to the President.
Even if the Government is correct that the
international authority at issue in
Hirota is no different
from the international authority at issue here, the present
“circumstances” differ in another respect. These cases concern
American citizens while
Hirota did not, and the Court has
indicated that habeas jurisdiction can depend on citizenship. See
Johnson v.
Eisentrager,
339 U. S. 763, 781
(1950);
Rasul v.
Bush,
542 U. S. 466, 486
(2004) (Kennedy, J., concurring in judgment). See also
Munaf, 482 F. 3d, at 584 (“[W]e do not mean to
suggest that we find the logic of
Hirota especially clear
or compelling, particularly as applied to American citizens”);
id., at 585 (Randolph, J., concurring in
judgment).[
Footnote 3] “Under
the foregoing circumstances,” we decline to extend our holding in
Hirota to preclude American citizens held overseas by
American soldiers subject to a United States chain of command from
filing habeas petitions.
III
We now turn to the question
whether United States district courts may exercise their habeas
jurisdiction to enjoin our Armed Forces from transferring
individuals detained within another sovereign’s territory to that
sovereign’s government for criminal prosecution. The nature of that
question requires us to proceed “with the circumspection
appropriate when this Court is adjudicating issues inevitably
entangled in the conduct of our international relations.”
Romero v.
International Terminal Operating Co.,
358 U. S. 354,
383 (1959). Here there is the further consideration that those
issues arise in the context of ongoing military operations
conducted by American Forces overseas. We therefore approach these
questions cognizant that “courts traditionally have been reluctant
to intrude upon the authority of the Executive in military and
national security affairs.”
Department of Navy v.
Egan,
484
U. S. 518, 530 (1988).
In
Omar, the District
Court granted and the D. C. Circuit upheld a preliminary
injunction that, as interpreted by the Court of Appeals, prohibited
the United States from (1) effectuating “Omar’s transfer
in any
form, whether by an official handoff or otherwise,” to Iraqi
custody, 479 F. 3d, at 12; (2) sharing details concerning any
decision to release Omar with the Iraqi Government,
id.,
at 13; and (3) “presenting Omar to the [Iraqi courts] for trial,”
id., at 14. This is not a narrow injunction. Even the
habeas petitioners do not defend it in its entirety. They
acknowledge the authority of the Iraqi courts to begin criminal
proceedings against Omar and wisely concede that any injunction
“clearly need not include a bar on ‘information-sharing.’ ”
Brief for Habeas Petitioners 61. As Judge Brown noted in her
dissent, such a bar would impermissibly “enjoin the United States
military from sharing information with an allied foreign sovereign
in a war zone.”
Omar,
supra, at 18.
We begin with the basics. A preliminary
injunction is an “extraordinary and drastic remedy,” 11A C. Wright,
A. Miller, & M. Kane, Federal Practice and Procedure §2948, p.
129 (2d ed. 1995) (hereinafter Wright & Miller) (footnotes
omitted); it is never awarded as of right,
Yakus v.
United States,
321 U. S. 414, 440
(1944). Rather, a party seeking a preliminary injunction must
demonstrate, among other things, “a likelihood of success on the
merits.”
Gonzales v.
O Centro Espírita Beneficente
Uniăo do Vegetal,
546 U. S. 418, 428
(2006) (citing
Mazurek v.
Armstrong,
520 U. S. 968, 972
(1997) (
per curiam);
Doran v.
Salem Inn,
Inc.,
422 U. S.
922, 931 (1975)). But one searches the opinions below in vain
for any mention of a likelihood of success as to the merits of
Omar’s habeas petition. Instead, the District Court concluded that
the “
jurisdictional issues” presented questions “so
serious, substantial, difficult and doubtful, as to make them fair
ground for litigation and thus for more deliberative
investigation.”
Omar v.
Harvey, 416 F. Supp. 2d
19, 23–24, 27 (DC 2006) (internal quotation marks omitted; emphasis
added).
The D. C. Circuit made the same mistake.
In that court’s view, the “only question before [it] at th[at]
stage of the litigation relate[d] to the district court’s
jurisdiction.” 479 F. 3d, at 11. As a result, the Court of
Appeals held that it “need not address” the merits of Omar’s habeas
claims: those merits had “no relevance.”
Ibid.
A difficult question as to jurisdiction is, of
course, no reason to grant a preliminary injunction. It says
nothing about the “likelihood of success on the merits,” other than
making such success more
unlikely due to potential
impediments to even reaching the merits. Indeed, if all a
“likelihood of success on the merits” meant was that the district
court likely had jurisdiction, then preliminary injunctions would
be the rule, not the exception. In light of these basic principles,
we hold that it was an abuse of discretion for the District Court
to grant a preliminary injunction on the view that the
“jurisdictional issues” in Omar’s case were tough, without even
considering the merits of the underlying habeas petition.
What we have said thus far would require
reversal and remand in each of these cases: The lower courts in
Munaf erred in dismissing for want of jurisdiction, and
the lower courts in
Omar erred in issuing and upholding
the preliminary injunction. There are occasions, however, when it
is appropriate to proceed further and address the merits. This is
one of them.
Our authority to address the merits of the
habeas petitioners’ claims is clear. Review of a preliminary
injunction “is not confined to the act of granting the
injunctio[n], but extends as well to determining whether there is
any insuperable objection, in point of jurisdiction or merits, to
the maintenance of [the] bill, and, if so, to directing a final
decree dismissing it.”
City and County of Denver v.
New York Trust Co.,
229 U. S. 123, 136
(1913). See also
Deckert v.
Independence Shares
Corp.,
311 U.
S. 282, 287 (1940) (“ ‘If insuperable objection to
maintaining the bill clearly appears, it may be dismissed and the
litigation terminated’ ” (quoting
Meccano, Ltd. v.
John Wanamaker, N. Y.,
253 U. S. 136, 141
(1920))). This has long been the rule: “By the ordinary practice in
equity as administered in England and this country,” a reviewing
court has the power on appeal from an interlocutory order “to
examine the merits of the case … and upon deciding them in favor of
the defendant to dismiss the bill.”
North Carolina R. Co.
v.
Story,
268 U. S. 288, 292
(1925). Indeed, “[t]he question whether an action should be
dismissed for failure to state a claim is one of the most common
issues that may be reviewed on appeal from an interlocutory
injunction order.” 16 Wright & Miller, Jurisdiction and Related
Matters, §3921.1, at 32 (2d ed. 1996).
Adjudication of the merits is most appropriate
if the injunction rests on a question of law and it is plain that
the plaintiff cannot prevail. In such cases, the defendant is
entitled to judgment. See,
e.g.,
Deckert,
supra, at 287;
North Carolina R. Co.,
supra, at 292;
City and County of Denver,
supra, at 136.
Given that the present cases involve habeas
petitions that implicate sensitive foreign policy issues in the
context of ongoing military operations, reaching the merits is the
wisest course. See
Youngstown Sheet & Tube Co. v.
Sawyer,
343
U. S. 579, 584–585 (1952) (finding the case ripe for merits
review on appeal from stay of preliminary injunction). For the
reasons we explain below, the relief sought by the habeas
petitioners makes clear under our precedents that the power of the
writ ought not to be exercised. Because the Government is entitled
to judgment as a matter of law, it is appropriate for us to
terminate the litigation now.
IV
The habeas petitioners argue that
the writ should be granted in their cases because they have “a
legally enforceable right” not to be transferred to Iraqi authority
for criminal proceedings under both the Due Process Clause and the
Foreign Affairs Reform and Restructuring Act of 1998 (FARR Act),
div. G, 112 Stat. 2681–761, and because they are innocent civilians
who have been unlawfully detained by the United States in violation
of the Due Process Clause. Brief for Habeas Petitioners 48–52. With
respect to the transfer claim, petitioners request an injunction
prohibiting the United States from transferring them to Iraqi
custody. With respect to the unlawful detention claim, petitioners
seek “release”—but only to the extent that release would not result
in “unlawful” transfer to Iraqi custody. Tr. of Oral Arg. 48. Both
of these requests would interfere with Iraq’s sovereign right to
“punish offenses against its laws committed within its borders.”
Wilson, 354 U. S., at 529. We accordingly hold that the
detainees’ claims do not state grounds upon which habeas relief may
be granted, that the habeas petitions should have been promptly
dismissed, and that no injunction should have been entered.
A
Habeas corpus is “governed by
equitable principles.”
Fay v.
Noia,
372 U. S. 391, 438
(1963). We have therefore recognized that “prudential concerns,”
Withrow v.
Williams,
507 U. S. 680, 686
(1993), such as comity and the orderly administration of criminal
justice, may “require a federal court to forgo the exercise of its
habeas corpus power,”
Francis v.
Henderson,
425 U. S. 536,
539 (1976).
The principle that a habeas court
is “not bound in every case” to issue the writ,
Ex parte
Royall,
117 U.
S. 241, 251 (1886), follows from the precatory language of the
habeas statute, and from its common-law origins. The habeas statute
provides only that a writ of habeas corpus “
may be
granted,” §2241(a) (emphasis added), and directs federal courts to
“dispose of [habeas petitions] as law and justice require,” §2243.
See
Danforth v.
Minnesota, 552 U. S. ___, ___
(2008) (slip op., at 13–14). Likewise, the writ did not issue in
England “as of mere course,” but rather required the petitioner to
demonstrate why the “extraordinary power of the crown” should be
exercised, 3 W. Blackstone, Commentaries on the Laws of England 132
(1768); even then, courts were directed to “do as to justice shall
appertain,” 1
id., at 131 (1765). The question, therefore,
even where a habeas court has the power to issue the writ, is
“whether this be a case in which [that power] ought to be
exercised.”
Ex parte Watkins, 3 Pet. 193, 201 (1830)
(Marshall, C. J.).
At the outset, the nature of the relief sought
by the habeas petitioners suggests that habeas is not appropriate
in these cases. Habeas is at its core a remedy for unlawful
executive detention.
Hamdi v.
Rumsfeld,
542 U. S. 507, 536
(2004) (plurality opinion). The typical remedy for such detention
is, of course, release. See,
e.g.,
Preiser v.
Rodriguez,
411 U. S. 475, 484
(1973) (“[T]he traditional function of the writ is to secure
release from illegal custody”). But here the last thing petitioners
want is simple release; that would expose them to apprehension by
Iraqi authorities for criminal prosecution—precisely what
petitioners went to federal court to avoid. At the end of the day,
what petitioners are really after is a court order requiring the
United States to shelter them from the sovereign government seeking
to have them answer for alleged crimes committed within that
sovereign’s borders.
The habeas petitioners do not dispute that
they voluntarily traveled to Iraq, that they remain detained within
the sovereign territory of Iraq today, or that they are alleged to
have committed serious crimes in Iraq. Indeed, Omar and Munaf both
concede that, if they were not in MNF–I custody, Iraq would be free
to arrest and prosecute them under Iraqi law. See Tr. in
Omar, No. 06–5126 (CADC), pp. 48–49, 59 (Sept. 11, 2006);
Tr. in
Mohammed, No. 06–1455 (DC), pp. 15–16 (Oct. 10,
2006). There is, moreover, no question that Munaf is the subject of
ongoing Iraqi criminal proceedings and that Omar would be but for
the present injunction. Munaf was convicted by the CCCI, and while
that conviction was overturned on appeal, his case was remanded to
and is again pending before the CCCI. The MNF–I referred Omar to
the CCCI for prosecution at which point he sought and obtained an
injunction that prohibits his prosecution. See 479 F. 3d, at
16, n. 3 (Brown, J., dissenting in part) (“ ‘[Omar] has
not yet had a trial or even an investigative hearing in the CCCI
due to the district court’s unprecedented injunction’ ”
(citing Opposition to Petitioner’s Emergency Motion for Injunctive
Relief 18–19, in
Munaf v.
Harvey, No. 06–5324
(CADC, Oct. 25, 2006))).
Given these facts, our cases make clear that
Iraq has a sovereign right to prosecute Omar and Munaf for crimes
committed on its soil. As Chief Justice Marshall explained nearly
two centuries ago, “[t]he jurisdiction of the nation within its own
territory is necessarily exclusive and absolute.”
Schooner
Exchange v.
McFaddon, 7 Cranch 116, 136 (1812). See
Wilson, supra, at 529 (“A sovereign nation has exclusive
jurisdiction to punish offenses against its laws committed within
its borders, unless it expressly or impliedly consents to surrender
its jurisdiction”);
Reid v.
Covert,
354 U. S. 1, 15,
n. 29 (1957) (opinion of Black, J.) (“[A] foreign nation has
plenary criminal jurisdiction … over all Americans … who commit
offenses against its laws within its territory”);
Kinsella
v.
Krueger,
351 U. S. 470, 479
(1956) (nations have a “sovereign right to try and punish [American
citizens] for offenses committed within their borders,” unless they
“have relinquished [their] jurisdiction” to do so).
This is true with respect to American citizens
who travel abroad and commit crimes in another nation whether or
not the pertinent criminal process comes with all the rights
guaranteed by our Constitution. “When an American citizen commits a
crime in a foreign country he cannot complain if required to submit
to such modes of trial and to such punishment as the laws of that
country may prescribe for its own people.”
Neely v. Henkel, 180 U. S. 109, 123
(1901).
The habeas petitioners nonetheless
argue that the Due Process Clause includes a “[f]reedom from
unlawful transfer” that is “protected wherever the
government seizes a citizen.” Brief for Habeas Petitioners 48. We
disagree. Not only have we long recognized the principle that a
nation state reigns sovereign within its own territory, we have
twice applied that principle to reject claims that the Constitution
precludes the Executive from transferring a prisoner to a foreign
country for prosecution in an allegedly unconstitutional
trial.
In Wilson, 354 U. S. 524, we reversed an
injunction similar to the one at issue here. During a cavalry
exercise at the Camp Weir range in Japan, Girard, a Specialist
Third Class in the United States Army, caused the death of a
Japanese woman. Id., at 525–526. After Japan indicted
Girard, but while he was still in United States custody, Girard
filed a writ of habeas corpus in the United States District Court
for the District of Columbia. Ibid. The District Court
granted a preliminary injunction against the United States,
enjoining the “proposed delivery of [Girard] to the Japanese
Government.” Girard v. Wilson, 152 F. Supp. 21,
27 (DC 1957). In the District Court’s view, to permit the transfer
to Japanese authority would violate the rights guaranteed to Girard
by the Constitution. Ibid.
We granted certiorari, and vacated
the injunction. 354 U. S., at 529–530. We noted that Japan had
exclusive jurisdiction “to punish offenses against its laws
committed within its borders,” unless it had surrendered that
jurisdiction. Id., at 529. Consequently, even though Japan
had ceded some of its jurisdiction to the United States pursuant to
a bilateral Status of Forces Agreement, the United States could
waive that jurisdiction—as it had done in Girard’s case—and the
habeas court was without authority to enjoin Girard’s transfer to
the Japanese authorities. Id., at 529–530.
Likewise, in Neely v.
Henkel, supra, this Court held that habeas corpus
was not available to defeat the criminal jurisdiction of a foreign
sovereign, even when application of that sovereign’s law would
allegedly violate the Constitution. Neely—the habeas petitioner and
an American citizen—was accused of violating Cuban law in Cuba.
Id., at 112–113. He was arrested and detained in the
United States. Id., at 113. The United States indicated
its intent to extradite him, and Neely filed suit seeking to block
his extradition on the grounds that Cuban law did not provide the
panoply of rights guaranteed him by the Constitution of the United
States. Id., at 122. We summarily rejected this claim:
“The answer to this suggestion is that those [constitutional]
provisions have no relation to crimes committed without the
jurisdiction of the United States against the laws of a foreign
country.” Ibid. Neely alleged no claim for which a
“discharge on habeas corpus” could issue. Id., at
125. Accordingly, the United States was free to transfer him to
Cuban custody for prosecution.
In the present cases, the habeas
petitioners concede that Iraq has the sovereign authority to
prosecute them for alleged violations of its law, yet nonetheless
request an injunction prohibiting the United States from
transferring them to Iraqi custody. But as the foregoing cases make
clear, habeas is not a means of compelling the United States to
harbor fugitives from the criminal justice system of a sovereign
with undoubted authority to prosecute them.
Petitioners’ “release” claim adds
nothing to their “transfer” claim. That claim fails for the same
reasons the transfer claim fails, given that the release
petitioners seek is release in a form that would avoid transfer.
See Tr. of Oral Arg. 47–48; App. 40 (coupling Munaf’s claim for
release with a request for order requiring the United States to
bring him to a U. S. court); App. 123 (same with respect to Omar).
Such “release” would impermissibly interfere with Iraq’s “exclusive
jurisdiction to punish offenses against its laws committed within
its borders,” Wilson, supra, at 529; the “release”
petitioners seek is nothing less than an order commanding our
forces to smuggle them out of Iraq. Indeed, the Court of Appeals in
Omar’s case took the extraordinary step of upholding an injunction
that prohibited the Executive from releasing Omar—the
quintessential habeas remedy—if the United States shared
information about his release with its military ally, Iraq. 479
F. 3d, at 13. Habeas does not require the United States to
keep an unsuspecting nation in the dark when it releases an alleged
criminal insurgent within its borders.
Moreover, because Omar and Munaf
are being held by United States Armed Forces at the behest of the
Iraqi Government pending their prosecution in Iraqi courts,
Mohammed, 456 F. Supp. 2d, at 117, release of
any kind would interfere with the sovereign authority of
Iraq “to punish offenses against its laws committed within its
borders,” Wilson, supra, at 529. This point becomes clear
given that the MNF–I, pursuant to its U. N. mandate, is
authorized to “take all necessary measures to contribute to the
maintenance of security and stability in Iraq,” App. G to Pet. for
Cert. in No. 07–394, p. 74a, ¶10, and specifically to provide for
the “internment [of individuals in Iraq] where this is necessary
for imperative reasons of security,” id., at
86a.
While the Iraqi Government is
ultimately “responsible for [the] arrest, detention and
imprisonment” of individuals who violate its laws, S. C. Res.
1790, Annex I, ¶4, p. 6, U. N. Doc. S/RES/1790 (Dec. 18,
2007), the MNF–I maintains physical custody of individuals like
Munaf and Omar while their cases are being heard by the CCCI,
Mohammed, supra, at 117. Indeed, Munaf is
currently held at Camp Cropper pursuant to the express order of the
Iraqi Courts. See In re Hikmat, No. 19/Pub. Comm’n/2007,
at 5 (directing that Munaf “remain in custody pending the outcome”
of further Iraqi proceedings). As that court order makes clear,
MNF–I detention is an integral part of the Iraqi system of criminal
justice. MNF–I forces augment the Iraqi Government’s peacekeeping
efforts by functioning, in essence, as its jailor. Any requirement
that the MNF–I release a detainee would, in effect, impose a
release order on the Iraqi Government.
The habeas petitioners acknowledge
that some interference with a foreign criminal system is
too much. They concede that “it is axiomatic that an American court
does not provide collateral review of proceedings in a foreign
tribunal.” Brief for Habeas Petitioners 39 (citing Republic of
Austria v. Altmann, 541 U. S. 677, 700
(2004)). We agree, but see no reason why habeas corpus should
permit a prisoner detained within a foreign sovereign’s territory
to prevent a trial from going forward in the first place. It did
not matter that the habeas petitioners in Wilson and
Neely had not been convicted. 354 U. S., at 525–526; 180
U. S., at 112–113. Rather, “the same principles of comity and
respect for foreign sovereigns that preclude judicial scrutiny of
foreign convictions necessarily render invalid attempts to shield
citizens from foreign prosecution in order to preempt such
nonreviewable adjudications.” Omar, 479 F. 3d, at 17
(Brown, J., dissenting in part).
To allow United States courts to
intervene in an ongoing foreign criminal proceeding and pass
judgment on its legitimacy seems at least as great an intrusion as
the plainly barred collateral review of foreign convictions. See
Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 417–418
(1964) (“ ‘To permit the validity of the acts of one sovereign
State to be reexamined and perhaps condemned by the courts of
another would very certainly “imperil the amicable relations
between governments and vex the peace of nations” ’ ”
(quoting Oetjen v. Central Leather Co., 246 U. S. 297, 303–304
(1918); punctuation omitted)).[Footnote 4]
There is of course even more at
issue here: Neither Neely nor Wilson concerned
individuals captured and detained within an ally’s territory during
ongoing hostilities involving our troops. Neely involved a
charge of embezzlement; Wilson the peacetime actions of a
serviceman. Yet in those cases we held that the Constitution allows
the Executive to transfer American citizens to foreign authorities
for criminal prosecution. It would be passing strange to hold that
the Executive lacks that same authority where, as here, the
detainees were captured by our Armed Forces for engaging in serious
hostile acts against an ally in what the Government refers to as
“an active theater of combat.” Brief for Federal Parties
16.
Such a conclusion would implicate
not only concerns about interfering with a sovereign’s recognized
prerogative to apply its criminal law to those alleged to have
committed crimes within its borders, but also concerns about
unwarranted judicial intrusion into the Executive’s ability to
conduct military operations abroad. Our constitutional framework
“requires that the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupulous not to
intervene in judicial matters.” Orloff v.
Willoughby, 345 U. S. 83, 94 (1953).
Those who commit crimes within a sovereign’s territory may be
transferred to that sovereign’s government for prosecution; there
is hardly an exception to that rule when the crime at issue is not
embezzlement but unlawful insurgency directed against an ally
during ongoing hostilities involving our troops.
B
1
Petitioners contend
that these general principles are trumped in their cases because
their transfer to Iraqi custody is likely to result in torture.
This allegation was raised in Munaf’s petition for habeas, App. 39,
¶46, but not in Omar’s. Such allegations are of course a matter of
serious concern, but in the present context that concern is to be
addressed by the political branches, not the judiciary. See M.
Bassiouni, International Extradition: United States Law and
Practice 921 (2007) (“Habeas corpus has been held not to
be a valid means of inquiry into the treatment the relator is
anticipated to receive in the requesting state”).
This conclusion is
reflected in the cases already cited. Even with respect to claims
that detainees would be denied constitutional rights if
transferred, we have recognized that it is for the political
branches, not the judiciary, to assess practices in foreign
countries and to determine national policy in light of those
assessments. Thus, the Court in Neely concluded that an
American citizen who “commits a crime in a foreign country” “cannot
complain if required to submit to such modes of trial and to such
punishment as the laws of that country may prescribe for its own
people,” but went on to explain that this was true “unless a
different mode be provided for by treaty stipulation between that
country and the United States.” 180 U. S., at 123. Diplomacy was
the means of addressing the petitioner’s concerns.
By the same token, while the Court
in Wilson stated the general principle that a “sovereign
nation has exclusive jurisdiction to punish offenses against its
laws committed within its borders,” it recognized that this rule
could be altered by diplomatic agreement in light of particular
concerns—as it was in that case—and by a decision of the Executive
to waive jurisdiction granted under that agreement—as it was in
that case. 354 U. S., at 529. See also Kinsella, 351 U.
S., at 479 (alteration of jurisdictional rule through “carefully
drawn agreements”). This recognition that it is the political
branches that bear responsibility for creating exceptions to the
general rule is nothing new; as Chief Justice Marshall explained in
the Schooner Exchange, “exemptions from territorial
jurisdiction … must be derived from the consent of the sovereign of
the territory” and are “rather questions of policy than of law,
that they are for diplomatic, rather than legal discussion.” 7
Cranch, at 143, 146. The present concerns are of the same nature as
the loss of constitutional rights alleged in Wilson and
Neely, and are governed by the same principles.[Footnote 5]
The Executive Branch may, of
course, decline to surrender a detainee for many reasons, including
humanitarian ones. Petitioners here allege only the possibility of
mistreatment in a prison facility; this is not a more extreme case
in which the Executive has determined that a detainee is likely to
be tortured but decides to transfer him anyway. Indeed, the
Solicitor General states that it is the policy of the United States
not to transfer an individual in circumstances where
torture is likely to result. Brief for Federal Parties 47; Reply
Brief for Federal Parties 23. In these cases the United States
explains that, although it remains concerned about torture among
some sectors of the Iraqi Government, the State Department has
determined that the Justice Ministry—the department that would have
authority over Munaf and Omar—as well as its prison and detention
facilities have “ ‘generally met internationally accepted
standards for basic prisoner needs.’ ” Ibid. The
Solicitor General explains that such determinations are based on
“the Executive’s assessment of the foreign country’s legal system
and … the Executive[’s] … ability to obtain foreign assurances it
considers reliable.” Brief for Federal Parties 47.
The Judiciary is not suited to
second-guess such determinations—determinations that would require
federal courts to pass judgment on foreign justice systems and
undermine the Government’s ability to speak with one voice in this
area. See The Federalist No. 42, p. 279 (J. Cooke ed. 1961) (J.
Madison) (“If we are to be one nation in any respect, it clearly
ought to be in respect to other nations”). In contrast, the
political branches are well situated to consider sensitive foreign
policy issues, such as whether there is a serious prospect of
torture at the hands of an ally, and what to do about it if there
is. As Judge Brown noted, “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.” 479 F. 3d, at 20, n. 6 (dissenting
opinion).
Petitioners briefly argue that
their claims of potential torture may not be readily dismissed on
the basis of these principles because the FARR Act prohibits
transfer when torture may result. Brief for Habeas Petitioners
51–52. Neither petitioner asserted a FARR Act claim in his petition
for habeas, and the Act was not raised in any of the certiorari
filings before this Court. Even in their merits brief in this
Court, the habeas petitioners hardly discuss the issue.
Id., at 17, 51–52, 57–58. The Government treats the issue
in kind. Reply Brief for Federal Parties 24–26. Under such
circumstances we will not consider the question.[Footnote 6]
2
Finally, the habeas
petitioners raise the additional argument that the United States
may not transfer a detainee to Iraqi custody, not because it would
be unconstitutional to do so, but because the “[G]overnment may not
transfer a citizen without legal authority.” Brief for Habeas
Petitioners 54. The United States, they claim, bears the burden of
“identify[ing] a treaty or statute that permits it to transfer
the[m] to Iraqi custody.” Id., at 49.
The habeas
petitioners rely prominently on Valentine v. United
States ex rel. Neidecker, 299 U. S. 5 (1936), where
we ruled that the Executive may not extradite a person held within
the United States unless “legal authority” to do so “is given by
act of Congress or by the terms of a treaty,” id., at 9.
But Valentine is readily distinguishable. It involved the
extradition of an individual from the United States; this is not an
extradition case, but one involving the transfer to a sovereign’s
authority of an individual captured and already detained in that
sovereign’s territory. In the extradition context, when a “fugitive
criminal” is found within the United States, “ ‘there is no
authority vested in any department of the government to seize [him]
and surrender him to a foreign power,’ ” in the absence of a
pertinent constitutional or legislative provision. Ibid.
But Omar and Munaf voluntarily traveled to Iraq and are being held
there. They are therefore subject to the territorial jurisdiction
of that sovereign, not of the United States. Moreover, as we have
explained, the petitioners are being held by the United States,
acting as part of MNF–I, at the request of and on behalf of the
Iraqi Government. It would be more than odd if the Government had
no authority to transfer them to the very sovereign on whose
behalf, and within whose territory, they are being
detained.
The habeas petitioners further
contend that this Court’s decision in Wilson supports
their argument that the Executive lacks the discretion to transfer
a citizen absent a treaty or statute. Brief for Habeas Petitioners
54–55. Quite the opposite. Wilson forecloses it. The only
“authority” at issue in Wilson—a Status of Forces
Agreement—seemed to give the habeas petitioner in that case a right
to be tried by an American military tribunal, not a Japanese court.
354 U. S., at 529. Nevertheless, in light of the background
principle that Japan had a sovereign interest in prosecuting crimes
committed within its borders, this Court found no “constitutional
or statutory” impediment to the United States’s waiver of its
jurisdiction under the agreement. Id., at 530.
* * *
Munaf and Omar are
alleged to have committed hostile and warlike acts within the
sovereign territory of Iraq during ongoing hostilities there.
Pending their criminal prosecution for those offenses, Munaf and
Omar are being held in Iraq by American forces operating pursuant
to a U. N. Mandate and at the request of the Iraqi Government.
Petitioners concede that Iraq has a sovereign right to prosecute
them for alleged violations of its law. Yet they went to federal
court seeking an order that would allow them to defeat precisely
that sovereign authority. Habeas corpus does not require the United
States to shelter such fugitives from the criminal justice system
of the sovereign with authority to prosecute them.
For all the reasons
given above, petitioners state no claim in their habeas petitions
for which relief can be granted, and those petitions should have
been promptly dismissed. The judgments below and the injunction
entered against the United States are vacated, and the cases are
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Footnote
1
As noted above, Munaf’s
conviction was subsequently vacated by an Iraqi appellate court,
and he is awaiting a new trial.
Footnote
2
These cases concern only
American citizens and only the statutory reach of the writ. Nothing
herein addresses jurisdiction with respect to alien petitioners or
with respect to the constitutional scope of the
writ.
Footnote
3
The circumstances in
Hirota differ in yet another respect. The petitioners in that
case sought an original writ, filing their motions for leave to
file habeas petitions “in this Court.” 338 U. S., at 198. There is,
however, some authority for the proposition that this Court has
original subject-matter jurisdiction only over “ ‘cases
affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party,’ ” Marbury
v. Madison, 1 Cranch 137, 174 (1803) (quoting U. S.
Const., Art. III, §2, cl. 2), and Congress had not granted the
Court appellate jurisdiction to review decisions of the
International Military Tribunal for the Far East.
Footnote 4
The habeas petitioners claim that
the injunction only bars Omar’s presentation to the Iraqi courts
and that the CCCI trial can go forward in Omar’s absence. The
injunction is not so easily narrowed. It was entered on the theory
that Omar might be “presented to the CCCI and in that same day, be
tried, [and] convicted,” thus depriving the United States district
courts of jurisdiction. Omar v. Harvey, 416
F. Supp. 2d 19, 29 (DC 2006). Petitioners’ interpretation
makes no sense under that theory: If a conviction would deprive the
habeas court of jurisdiction, a trial, with or without the
defendant, could result in just such a jurisdiction-divesting
order.
Footnote 5
The United States has in fact
entered into treaties that provide procedural protections to
American citizens tried in other nations. See, e.g., North
Atlantic Treaty: Status of Forces, June 19, 1951, 4 U. S. T.
1802, T. I. A. S. No. 2846, Art. VII, ¶9
(guaranteeing arrested members of the Armed Forces and their
civilian dependents, inter alia, an attorney, an
interpreter, and a prompt and speedy trial, as well as the right to
confront witnesses, obtain favorable witnesses, and communicate
with a representative of the United States).
Footnote 6
We hold that these habeas
petitions raise no claim for relief under the FARR Act and express
no opinion on whether Munaf and Omar may be permitted to amend
their respective pleadings to raise such a claim on remand. Even if
considered on the merits, several issues under the FARR Act claim
would have to be addressed. First, the Act speaks to situations
where a detainee is being “returned” to “a country.” FARR Act
§2242(a), 112 Stat. 2681–822 (“It shall be the policy of the United
States not to expel, extradite, or otherwise effect the involuntary
return of any person to a country in which there are substantial
grounds for believing the person would be in danger of being
subjected to torture, regardless of whether the person is
physically present in the United States”); see also Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1465 U. N. T. S. 85, Art. 3, S. Treaty
Doc. No. 20, 100th Cong., 2d Sess., p. 6 (1988) (“No State
Party shall expel, return (‘refouler’) or extradite a person to
another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture”
(emphasis added)). It is not settled that the Act addresses the
transfer of an individual located in Iraq to the Government of
Iraq; arguably such an individual is not being “returned” to “a
country”—he is already there.
Second, claims under the FARR Act may be limited to
certain immigration proceedings. See §2242(d), 112 Stat. 2681–822
(“[N]othing in this section shall be construed as providing any
court jurisdiction to consider or review claims raised under the
Convention or this section, or any other determination made with
respect to the application of the policy set forth in [this
section], except as part of the review of a final order of removal
pursuant to [8 U. S. C. §1252 (2000 ed. and Supp. V]”).
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