The Supreme Court gives habeas corpus a swirly.

The Supreme Court gives habeas corpus a swirly.

The Supreme Court gives habeas corpus a swirly.

Oral argument from the court.
March 25 2008 7:23 PM

Jail of Two Cities

The Supreme Court gives the right to habeas corpus a swirly.

U.S. Supreme Court
U.S. Supreme Court

We have known each other for a long time, so I'm going to ask you to indulge me in the war against "enemy combatant fatigue" (the medical condition wherein each court case about the "war on terror" warrants exponentially less outrage and attention). This dispatch is about two U.S. citizens named Mohammad Munaf and Shawqi Omar, being held by a coalition led by U.S. forces in a U.S. military prison in Iraq. But I'm going to ask that you pretend their names are Morgan and O'Hara instead. Because it's always easy to throw Munaf and Omar under the constitutional bus. Morgan and O'Hara have American kids and wives, and sometimes they even serve in the Minnesota National Guard.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Munaf/Morgan is a dual U.S.-Iraqi citizen with a noncitizen wife and three small U.S.-citizen kids. He claims he went to Iraq as a translator for three Romanian journalists, who were then kidnapped. He was kidnapped, too. After the Romanians' release, Munaf was charged with plotting in the kidnapping, then he was convicted and sentenced to death in the Iraqi Central Criminal Court. Munaf confessed to the plot but recanted at trial, claiming his confession had been coerced under the threat of abuse. He petitioned for habeas corpus relief in the U.S. courts—Latin for "get me outta here"—but was turned down there and again at the federal appeals court for the District of Columbia, chiefly because he'd already been convicted in the Iraqi system. Three weeks ago, an Iraqi appeals court overturned that Iraqi conviction.


Omar/O'Hara is a dual U.S.-Jordanian citizen, married to a U.S. citizen, with six American children. He served in the Minnesota National Guard. In 2002, Omar traveled to Iraq, seeking work in the reconstruction. In a 2004 raid on his home, U.S.-led forces allegedly discovered an Iraqi insurgent, four Jordanian jihadists, and explosive materials. Like Munaf, he's being held at a U.S. military prison at Camp Cropper, near Baghdad. Before he could be transferred to the Iraqi courts, Omar's wife filed a habeas corpus petition, alleging that as a Sunni Muslim he'd likely be tortured in custody. The federal district court found it had jurisdiction to hear his habeas corpus petition, then enjoined his transfer to Iraqi custody. The federal appeals court for the District of Columbia agreed. The two cases were consolidated for argument.

The Bush administration's main argument in this case is a simple one—a variation of which you may remember from the golden days of lawlessness at Guantanamo: Sure, the military authority in Iraq might look like it's composed of U.S. soldiers, the prisons may appear to be U.S. military jails, the whole effort may seem to be led by the U.S. president, but really these "enemy combatants" are not under U.S. jurisdiction. Why? Well, just as American troops are merely renting out Gitmo from the Cubans, the authorities that captured and held Omar and Munaf are actually just part of a U.N.-mandated international force.

Never is the president's respect for foreign nations greater than when they're holding the legal bag for him. Under this theory, as long as a French chef serves up some crepes in Baghdad once in a while, it's a multinational, not a U.S., army. Oh. And the reason we must allow the Iraqi courts to have their way with U.S. citizens captured there? Because the president worries that if American courts intervene, "other nations would inevitably take offense."

Wouldn't want to offend other nations.

Deputy Solicitor General Gregory Garre has the unenviable task of defending this principle. He must explain why American citizens held by American forces abroad don't actually have a right to habeas corpus relief, comparable to that established in Hamdi v. Rumsfeld. The more relevant case, urges the government, is actually a 1948 case, Hirota v. MacArthur,which determined (in about nine opaque sentences) that American courts had no habeas jurisdiction over Japanese nationals captured, held, and tried by Allied forces in World War II. Of course, those guys weren't citizens like Morgan and O'Hara.

Almost as soon as he mentions Hirota, Justice David Souter clocks Garre with the fact that "you've got American citizens here." And Justice Ruth Bader Ginsburg hastens to add that the other difference in Hirota was that there had already been "convictions and sentences" in the foreign court, whereas Omar's case "has not even been investigated by the Iraqi courts, certainly no conviction," and Munaf's conviction was quashed.

Garre replies that Hirota wouldn't have come out differently even if the habeas petitions had been sought before conviction and with the equally unsupported assertion that the fact that it was an international authority trying the prisoners was "key to the court's finding that there was no jurisdiction." Souter replies that if the president acting alone can simply "make an agreement for an international force" and thus suspend all judicial habeas jurisdiction over American citizens, well, that's "a little scary."

Garre suggests the forces in Iraq aren't really there under color of U.S. authority, but Souter cuts him off: "You've got an American commander and straight-line authority right through." Garre responds that the "United Nations controls the strings." Ginsburg asks, "How many people are being held in the custody of this multinational force the U.S. controls?" Twenty-four thousand, replies Garre. And they all have an American judge on speed-dial.

Chief Justice John Roberts asks for some limiting principle here: Should U.S. citizens be turned over to foreign courts in which "they won't receive anything resembling due process and will be subject to abuse"? Garre opts to brazen it out with the claim that when American citizens go abroad, "they have to take what they get." Justice John Paul Stevens asks if they can thus "be released to a lynch mob." Garre wisely says that question can be reserved for another case.