Omar v. Harvey, 06-5126.

• Decision Date: 09 February 2007
• Docket Number: No. 06-5126.,06-5126.
• Citation: 479 F.3d 1
• Parties: Sandra K. OMAR and Ahmed S. Omar, As Next Friends of Shawqi Ahmad Omar, Appellees v. Francis J. HARVEY, Secretary of the United States Army, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

479 F.3d 1

Sandra K. OMAR and Ahmed S. Omar, As Next Friends of Shawqi Ahmad Omar, Appellees v. Francis J. HARVEY, Secretary of the United States Army, et al., Appellants.

No. 06-5126.

United States Court of Appeals, District of Columbia Circuit.

Argued September 11, 2006.

Decided February 9, 2007.

Appeal from the United States District Court for the District of Columbia (No. 05cv02374).

Gregory G. Garre, Deputy Solicitor General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, Gregory G. Katsas, Deputy Assistant Attorney General, David B. Salmons, Assistant to Solicitor General, Douglas Letter and Jonathan H. Levy, Attorneys. Steve Frank, Attorney, U.S. Department of Justice, entered an appearance.

Aziz Z. Huq argued the cause for appellees. With him on the brief were Susan L. Burke, Heather L. Allred, Joseph Margulies, and Jonathan L. Hafetz.

Before: TATEL and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion dissenting in part filed by Circuit Judge BROWN.

TATEL, Circuit Judge:

In this case we have before us a petition for a writ of habeas corpus filed on behalf of Shawqi Ahmad Omar, an American citizen captured and detained in Iraq by United States military forces operating as part of the Multi-National Force-Iraq. Omar has been held under the control of United States forces for over two years, allegedly without legal process and with no meaningful access to counsel. When the district court learned of Omar's imminent transfer to Iraqi authorities for trial on terrorism charges, it issued a preliminary injunction barring transfer in order to preserve its jurisdiction to entertain the habeas petition. The government appeals, arguing that the district court lacks jurisdiction to entertain the petition and that, in any event, it had no authority to enter the preliminary injunction because Omar's transfer to Iraqi authorities would afford him all the relief he seeks, i.e., release from U.S. custody. For the reasons set forth in this opinion, we affirm.

I.

In late October 2004, United States military forces operating in Iraq arrested appellee Shawqi Ahmad Omar, a dual American/Jordanian citizen, at his Baghdad home. Born in Kuwait, Omar became a naturalized American citizen following his marriage to the former Sandra Kay Sulzle. According to Omar, after the overthrow of the Saddam Hussein government, he traveled to Iraq seeking reconstruction-related work and would have left by November 2004 but for his arrest and detention.

The government paints a very different picture of Omar's presence in Iraq. According to the government, U.S. military forces, operating in Iraq pursuant to U.N. Security Council Resolutions 1546 (2003) and 1637 (2004) as part of the Multi-National Force-Iraq (MNF-I), captured Omar during a raid on associates of Abu Musab al-Zarqawi. The government believes that Omar was part of Zarqawi's network and that he facilitated terrorist activities both in and outside of Iraq. The government alleges that four Jordanian foreign fighters and an Iraqi insurgent were captured along with Omar, and that weapons and improvised explosive device making materials were found in his home.

Following Omar's arrest, an MNF-I panel of three American military officers conducted a hearing to resolve his status. According to the government, the process employed by the panel exceeded the requirements of Article 5 of the Third Geneva Convention. The record, however, reveals little about the panel's operation. We know only that the panel permitted Omar to see the evidence against him, to make a statement, and to call "immediately available" witnesses. Declaration of John D. Gardner, Deputy Commanding General for Detainee Operations, Multi-National Force-Iraq, at 3-4 (Feb. 7, 2006), reprinted in Joint Appendix 138-39 (hereinafter "Gardner Decl."). After the hearing, the panel declared Omar to be a "security internee under the law of war" and an "`enemy combatant' in the war on terrorism." Appellants' Br. 9. The panel also found that Omar was not a prisoner of war for purposes of the Third Geneva Convention. Since the panel's decision, American MNF-I officials have held Omar at various detention facilities in Iraq. According to Omar, the military has transferred him between Camp Cropper, the Abu Ghraib prison, and Camp Bucca. Omar has been in custody for over two years without formal charges and, he alleges, without access to counsel.

In August 2005, the MNF-I decided to refer Omar to the Central Criminal Court of Iraq (CCCI) for trial. The record indicates neither who made this decision nor what procedures were followed. The CCCI, a Baghdad-based Iraqi court, has national jurisdiction over an array of criminal offenses, including terrorism. According to the government, during the CCCI investigation and trial phases, the MNF-I maintains physical custody of detainees like Omar, turning them over to the Iraqi Ministry of Justice only after conviction.

On December 12, 2005, Omar's wife, Sandra, and son, Ahmed, filed a petition for a writ of habeas corpus as Omar's next friends. Brought in the United States District Court for the District of Columbia, the petition names as respondents Francis J. Harvey, Secretary of the Army; Major General William H. Brandenburg, then-Deputy Commanding General of Detainee Operations and Commanding General of Task Force 134, MNF-I; and Lieutenant Colonel Timothy Houser of the 105th Military Police Battalion, commanding officer at Camp Bucca. The petition asserts that Omar's detention by the United States military violates numerous constitutional provisions, chief among them the right to due process guaranteed by the Fifth Amendment. The petition asks the district court to "[i]ssue a Writ of Habeas Corpus requiring Respondents to release Shawqi Omar from detention, and/or requiring Respondents to bring Shawqi Ahmad Omar before a court of competent jurisdiction in the United States to show just cause for his continued detention." Habeas Pet. at 17. Also alleging that "the United States military may turn Mr. Omar over to the custody of Iraqi authorities in an effort to evade the strictures of United States law," id. at 12-13, the petition asks the district court to "[e]njoin Respondents from transferring Mr. Omar to the authority of any other government, sovereign, country, or agency until [the district court] has an opportunity to consider and decide the merits of this Petition." Id. at 17.

Approximately two months after filing the petition, Omar's attorney received an e-mail from the Department of Justice informing her of the MNF-I's earlier decision to refer Omar to the CCCI. Believing that CCCI proceedings could interrupt American custody of Omar, thereby stripping the district court of jurisdiction, that transfer would amount to an illegal extradition, and that Omar would likely face torture by Iraqi authorities, the attorney sought and received an ex parte temporary restraining order requiring that Omar "not be removed from United States custody." Order Granting the Ex Parte Motion for a TRO at 2.

In a memorandum filed shortly after entry of the TRO, the government challenged the district court's jurisdiction to entertain the petition. The government relied principally on Hirota v. MacArthur, 338 U.S. 197, 69 S.Ct. 197, 93 L.Ed. 1902 (1948), in which the Supreme Court held that World War II Japanese officials could not invoke habeas to challenge their conviction by a multinational military tribunal. The government also argued that the district court had no authority to issue injunctive relief because doing so would "inject [the court] into an exclusive Executive function" and because adjudication of Omar's potential referral to the CCCI "raises non-justiciable political questions." Resp'ts' Opp'n to Pet'rs' Ex Parte Mot. for a TRO at 22, 25.

Following briefing, the district court converted the TRO into a preliminary injunction ordering that "the respondents . . . 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." Order Granting the Mot. for a Prelim. Inj. (hereinafter "Prelim. Inj. Order"). In the accompanying memorandum opinion, the court explained that the jurisdictional issues in the case 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 (D.D.C. 2006) (internal quotation marks omitted) (quoting Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C.Cir.1977)). Fearing imminent referral to the CCCI would forever preclude a more deliberative investigation of the weighty jurisdictional questions, the court issued the injunction to freeze the status quo. In doing so, the court credited Omar's contention that transfer could irreparably deprive him of this investigation by "undo[ing the] court's jurisdiction." Id. at 28. This, the court concluded, "would abuse the process now put in place for the purpose of adjudicating matters on their merits." Id.

The government appeals, arguing (as it did in the district court) that Hirota controls and that Omar's challenge presents non-justiciable political questions. The government also argues that even if the district court does have jurisdiction, its injunction was improper because, by prohibiting Omar's removal from American or MNF-I custody, it bars the government from providing Omar "all of the relief to which he is entitled through a writ of habeas corpus." Appellants' Br. 20. We consider each issue in turn.

II.

The "great writ"...