Detention: Operations in Afghanistan

Two New Opinions From The D.C. Circuit Court Today

By Raffaela Wakeman
Tuesday, June 21, 2011, 11:32 AM

The D.C. Circuit Court this morning handed down two opinions that may be of interest to Lawfare readers.

In Ali v. Rumsfeld, Judge Karen LeCraft Henderson delivered the opinion which affirmed the district court's dismissal. Her opinion was joined by Chief Justice Sentelle; Senior Circuit Judge Edwards dissented. The opinion opens:

Four Afghan and five Iraqi citizens captured and subsequently held in Afghanistan and Iraq, respectively, by the United States military sued Donald Rumsfeld, former Secretary of the United States Department of Defense, and three high-ranking Army officers (collectively, defendants) under the Fifth and Eighth Amendments to the United States Constitution, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, seeking damages and declaratory relief as the result of their treatment while in U.S. custody. The district court granted the defendants’ motion to dismiss all six claims and the plaintiffs appeal the dismissal of their constitutional and ATS claims only. For the reasons set forth below, we affirm the district court’s judgment.

The court also affirmed the district court's denial of a writ of habeas corpus in Omar v. McHugh. The opinion was delivered by Judge Kavanaugh and was joined by Judge Ginsburg. Judge Griffith filed a concurring opinion. The opinion begins:

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.

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.

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.

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.