A New Writ: Please Detain Me!

Slate's blog on legal issues.
March 23 2008 9:00 PM

A New Writ: Please Detain Me!

Suppose that U.S. troops are on patrol in country X. Perhaps they are engaging in joint maneuvers with that country's armed forces; perhaps they are there for some other reason. Some soldiers out on maneuvers run across a person whose face is on a "wanted" poster that they have seen. In violation of their own orders, U.S. law, and local law, they decide to arrest that person, reasoning that he is dangerous and that they are doing everyone a favor. A scandal ensues; the soldiers are disciplined.

Meanwhile, however, the government of country X asks the U.S. military, which has taken custody of the person in question, to hand him over to the government. The government understandably prefers that a wanted criminal not go free. The U.S. military is about to make the transfer when it learns that a U.S. district court has issued a preliminary injunction against turning this person over to the foreign government. This person, who happens to be an American citizen, although concededly under the criminal jurisdiction of country X where his alleged crimes occurred, has some relatives back in the U.S. who have filed a habeas petition on his behalf.

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Normally, a habeas petition asks a court to order the U.S. government to release the person in custody. Fine, says the government; we will release him to the government of X. He is a wanted criminal, after all. No, says the court; you have to hold onto him. After we have a habeas hearing, then you can release him. Release him to the government of X? We'll decide later, says the court. Well, what are the other possibilities? Release him secretly so that he can continue to roam at large in country X? Ship him back to the United States and set him free there?  Why would we want to do that?

Deborah , isn't this the Omar case (except that I have assumed, for the sake of argument, that U.S. custody of Omar is clearly illegal when it might well not have been)? Why would it be hypocritical or in any other way wrong for the United States government to release Omar to the custody of Iraqi law enforcement authorities? I'm sure Iraqi criminal justice is not fantastic, but it's what everyone else there has to put up with. As best I can tell, the majority of the appellate panel thinks that detaining Omar for a while longer might do him a favor because the Iraqi authorities could change their minds about arresting him and charging him with crimes, perhaps in light of evidence disclosed in the hearing. In effect, the court is anticipating that Omar's remedy for being illegally (if that is the case) detained is that he will be detained even longer. Odd.

To see why this is so odd, suppose that the preliminary injunction were out of the picture. Omar is picked up, and a habeas hearing is held instantaneously. If he wins (the court holds that the detention was illegal), then he is kept in detention (for how long?) in the hope that the Iraqis will change their minds. If he loses (the court holds that the detention was legal), then he is released immediately into the waiting arms of the Iraqi police. Do you think that a wanted criminal in Iraq should be shipped back to the United States for a trial here, even though the alleged crime was committed on Iraqi soil?

If I were a Supreme Court justice, I would ask Omar's counsel what relief he ultimately hoped to obtain (after the hearing is held). I find it hard to believe that the counsel could answer this question without sounding ridiculous. Anyone have any ideas?

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.