Omar v. McHugh
| Decision Date | 21 June 2011 |
| Docket Number | No. 09-5410,09-5410 |
| Parties | SANDRA K. OMAR, ET AL., APPELLANTS v. JOHN M. MCHUGH, SECRETARY OF THE UNITED STATES ARMY, ET AL.,APPELLEES |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Joseph Margulies argued the cause for appellants. With him on the briefs were Jonathan Hafetz, Aziz Z. Huq, Emily Berman, and Eric M. Freedman.
Douglas N. Letter, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Jonathan H. Levy, Attorney.
Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit Judges.opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge GINSBURG joins.
KAVANAUGH, Circuit Judge: Shawqi Omar is a dual citizen of Jordan and the United States. Since 2004, the U.S. military has detained Omar in Iraq based on evidence that Omar participated in al Qaeda's terrorist activities there. The United States apparently intends to transfer Omar to the custody of Iraq's government. But since 2005, Omar has pursued a habeas corpus petition in the U.S. court system seeking to block his transfer. Even though U.S. forces are detaining Omar outside U.S. territory, we have jurisdiction to consider his habeas petition because he is a U.S. citizen. See Munaf v. Geren, 553 U.S. 674, 685-88 (2008); cf. Boumediene v. Bush, 553 U.S. 723, 766 (2008); Johnson v. Eisentrager, 339 U.S. 763, 777 (1950); Al Maqaleh v. Gates, 605 F.3d 84, 94 (D.C. Cir. 2010).
Omar argues that he cannot be transferred to the custody of Iraqi officials because, he claims, he is likely to be tortured after his transfer. The U.S. Executive Branch responds that it does not transfer persons to countries where they are likely to be tortured. And the Executive Branch maintains that Omar is not likely to be tortured if transferred to Iraqi custody.
in his initial habeas petition, Omar argued that he had a habeas corpus and due process right not to be transferred if, as he alleged, he was likely to be tortured in the custody of the receiving country. Omar contended that he had a corresponding right to judicial review of conditions in the receiving country before he could be transferred. The Supreme Court unanimously rejected that argument in 2008,concluding that Omar did not have a habeas corpus or due process right to judicial second-guessing of the Executive's determination that he was not likely to be tortured in Iraqi custody. See Munaf, 553 U.S. at 692-703.
in his amended habeas petition, Omar now asserts that the Foreign Affairs Reform and Restructuring Act of 1998 (which has been supplemented by the REAL ID Act of 2005) gives him a right to judicial review of conditions in the receiving country before he may be transferred. Omar's statutory argument is no more persuasive than the constitutional argument already rejected by the Supreme Court. As this Court has previously held, the FARR Act and the REAL ID Act do not give military transferees such as Omar a right to judicial review of their likely treatment in the receiving country. See Kiyemba v. Obama ("Kiyemba IF"), 561 F.3d 509, 514-15 (D.C. Cir. 2009).
Omar also has refashioned his previously rejected constitutional argument. He contends that he is entitled under the Constitution's habeas corpus guarantee - either by itself or in conjunction with the Due Process Clause or the FARR Act - to judicial review of conditions in the receiving country. We disagree. As the Supreme Court already ruled when considering Omar's case in Munaf, the Constitution's guarantee of habeas corpus does not encompass such a right.
We therefore affirm the District Court's denial of Omar's petition for a writ of habeas corpus. in so doing, we recognize that the policy arguments supporting Omar's position are not insubstantial. Congress remains free to provide military transferees such as Omar with a right to judicial review of conditions in the receiving country before they are transferred. But Congress has not done so.
Shawqi Omar is a citizen of both Jordan and the United States. in October 2004, the U.S. military captured him in Baghdad, Iraq. The United States suspected that Omar had been working with the leadership of al Qaeda in Iraq by recruiting foreign fighters, coordinating with other terrorist groups, and planning and executing kidnappings. in a separate proceeding, the Government of Iraq convicted Omar of immigration violations, and he was sentenced to 15 years in prison.
The U.S. military has detained Omar since 2004 and is currently holding him at Camp Cropper, Iraq. The United States apparently intends to transfer Omar to Iraqi custody. in 2005, Omar's wife, Sandra Omar, and his son, Ahmed Omar, filed a next-friend petition for a writ of habeas corpus in the U.S. District Court for the District of Columbia. Omar sought, among other things, an injunction preventing his transfer to Iraqi custody.
Omar's case reached the Supreme Court in 2008. See Munaf v. Geren, 553 U.S. 674 (2008).1 Omar argued that hewas likely to be tortured if transferred to Iraqi authorities, that he had a right under "the substantive component of the Due Process Clause" against "transfers to likely torture," and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment in the receiving country, Iraq. Brief for Habeas Petitioners at 51, Munaf, 553 U.S. 674 (Nos. 06-1666, 07-394). The Court unanimously rejected Omar's argument, pointing to the Executive's assertion that "it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result" and to the Executive's determination that Omar was unlikely to face torture while in Iraqi custody. Munaf, 553 U.S. at 702. The Court stated that "[t]he Judiciary is not suited to second-guess such determinations." Id. In so concluding, the Court did not distinguish between due process rights and habeas corpus rights. The Court followed longstanding extraditionprinciples and precedents, noting that "[h]abeas 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." Id. at 700 (quoting M. BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 921 (2007)) (emphasis omitted). The Court held that Omar's petition did not "state grounds upon which habeas relief may be granted." Munaf, 553 U.S. at 692. Omar's fear of torture in Iraqi custody did not trump the general principle that, absent congressional direction otherwise, courts may not inquire into the treatment a transferee such as Omar might receive in the custody of another sovereign. See id. at 700-03.
In his submission to the Supreme Court, Omar also argued that he had a right under the Foreign Affairs Reform and Restructuring Act of 1998 to judicial review of conditions in the receiving country. See 8 U.S.C. § 1231 note. The Court declined to reach Omar's FARR Act claim because he had not advanced it in his initial petition for habeas corpus. The Court, in any event, expressed doubt that Omar would have a claim under the Act. See Munaf, 553 U.S. at 703 & n.6.
Omar then filed an amended petition for habeas corpus in the District Court. Omar's amended petition raised a stew of FARR Act, habeas corpus, and due process claims. The District Court granted the Government's motion to dismiss. We review that decision de novo.
Omar argues that the Foreign Affairs Reform and Restructuring Act of 1998 grants him a right to judicial review of conditions in the receiving country - here, Iraq -before he is transferred. But this Court has already held thatthe FARR Act, as supplemented by the REAL ID Act of 2005, does not give military transferees such as Omar that right. See Kiyemba v. Obama ("Kiyemba II"), 561 F.3d 509, 514-15 (D.C. Cir. 2009). In light of that controlling circuit precedent, Omar's argument is unavailing.
The Foreign Affairs Reform and Restructuring Act of 1998 implements Article 3 of the Convention Against Torture. The Convention Against Torture was signed in 1988 by a representative of the President and ratified in 1990 by the U.S. Senate. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 108 Stat. 382, 1465 U.N.T.S 85; 136 CONG. REC. S17,491-92 (daily ed. Oct. 27, 1990). Article 3 of the Convention Against Torture provides: "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." This multilateral treaty is non-self-executing and thus does not itself create any rights enforceable in U.S. courts. See Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008).
The FARR Act provides, in relevant part:
(a) POLICY.—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.
Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 822 (1998) ...
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