The petitioners’ claims on the merits include:
1. That a de facto or de jure transfer to the Iraqis is not authorized by law;
2. That such a transfer is also prohibited by an extradition treaty;
3. That because there is a likelihood of torture, such transfer would also violate another treaty;
and
4. That the U.S. military did not provide them with adequate process before deciding to detain them incident to a decision to transfer them to Iraqi authorities, and that if such process were afforded, they would demonstrate that there is no ground for trying them as criminals in the Iraqi system.
Now, these might all be fruitless claims — I have no idea. But that’s what the habeas proceeding would test. If at the end of such process, the U.S. courts were to hold that any of those claims were correct — that the transfer would be unlawful, would lead to torture, etc., and if the U.S. executive branch were to respect such a holding, then the military would not transfer the petitioners to the Iraqi authorities. As Judge Tatel explained in the Omar case:
At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities. Nor do we have any idea what would happen to Omar once released. Perhaps he would end up in Iraqi custody, but perhaps he would not. For example, perhaps because of developments at the habeas hearing, such as the appearance of defects in the government’s case or the introduction of exculpatory evidence, the Iraqis would decide that Omar is no longer worth prosecuting . Or perhaps by the time the district court ordered Omar’s release, Iraqi priorities would have changed, leaving Iraqi authorities uninterested in allocating scarce military resources … to his arrest. The point is that on the record before us at this stage of these proceedings, neither the government nor the dissent nor we can possibly know what would happen to Omar if the district court barred his transfer and ordered his release. Given this uncertainty, a preliminary injunction protecting Omar from the certainty of transfer now is hardly an “empty gesture.” … The dissent’s speculation about a U.S. military “tip-off” to the Iraqis suffers from a second defect. If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him either directly through a formal handoff or indirectly by “releasing” him with a wink-and-a-nod to the Iraqis .
