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No. 07-394

 

In the Supreme Court of the United States

PETE GEREN, SECRETARY OF THE ARMY, ET AL., PETITIONERS

v.

SANDRA K. OMAR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

 

 

In the Supreme Court of the United States

No. 07-394

PETE GEREN, SECRETARY OF THE ARMY, ET AL., PETITIONERS

v.

SANDRA K. OMAR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

The court of appeals' split decision in this case repre sents an extraordinary intrusion on the decisions of a multinational military force operating under a U.N. mandate in a foreign combat zone, a foreign sovereign's right to enforce its criminal laws for offenses within its own borders, and our Executive's own authority to con duct military and foreign affairs. Nothing in the brief in opposition diminishes the importance of the questions presented or the need for this Court's review.

A. The Jurisdictional Question Warrants Review

The court of appeals asserted jurisdiction to review the detention of an individual by a multinational force operating overseas in a theater of active hostilities pur suant to a U.N. mandate. Pet. App. 14a-15a. Respon dent argues (Br. in Opp. 13-23) that the court of appeals'

jurisdictional holding is correct, but respondent's own counsel acknowledges that the analytical foundation for that holding-which is centered on the lack of a foreign conviction-is "simply irrational." See Pet. at 19, Mun af v. Geren, No. 06-1666 (filed June 13, 2007). The juris dictional rules developed by the court of appeals are fun damentally unsound and merit this Court's review.

1. As explained in the petition, Hirota v. MacAr thur, 338 U.S. 197 (1948) (per curiam), establishes that United States courts lack jurisdiction to review the de tention of individuals abroad pursuant to international authority, including individuals held by United States forces acting under American command as part of a mul tinational force. Pet. 11-16. The court of appeals ac knowledged that this case is just like Hirota in that re spondent is detained "overseas" by a "multinational force," Pet. App. 11a, but held that Hirota is inapposite because respondent has not yet been convicted by a for eign tribunal, id. at 13a. That was error because Hiro ta's jurisdictional rule turns on whether a prisoner is in custody under the authority of the United States or of a multinational entity, not on whether an individual has been convicted by a foreign tribunal. Pet. 13-14.

a. Respondent argues (Br. in Opp. 19-22) that Hir ota stands only for the proposition that this Court lacked original jurisdiction over the habeas petition in that case. But the Hirota Court did not say a word ab out this Court's original jurisdiction. Nor has any lower court read Hirota as being limited to this Court's origi nal jurisdiction. Instead, this Court framed its holding in broad terms concerning the power of "the courts of the United States." 338 U.S. at 198. Thus, as the Dis trict of Columbia Circuit has consistently recognized from the year after Hirota was decided and ever since, "no court" has jurisdiction to review a habeas petition falling within Hirota's ambit. Flick v. Johnson, 174 F.2d 983, 984, cert. denied, 338 U.S. 879 (1949); see Munaf v. Geren, 482 F.3d 582, 583 (2007), petition for cert. pending, No. 06-1666 (filed June 13, 2007).

b. Respondent argues (Br. in Opp. 12) that the gov ernment "attacks sub silentio the holding of Hamdi v. Rumsfeld, 542 U.S. 507 (2004)." That is incorrect. Hamdi did not challenge any detention by a multina tional force acting under international authority; he challenged his detention in the United States by U.S. forces acting solely under domestic authority. Id. at 511. Thus, as the court of appeals explained (Pet. App. 9a), neither Hamdi nor any of the other cases cited by respondent (Br. in Opp. 16-18) involved the question here. See Gov't Pet. Resp. at 11-13, Munaf, supra.

Respondent attempts to evade this basic distinction by asserting that the government has conceded that the United States personnel who are holding him "operate 'subject to' no independent [Multinational Force-Iraq (MNF-I)] authority." Br. in Opp. 3, 14, 16 (quoting Pet. App. 14a). Not so. The government has made clear throughout this litigation that the MNF-I is an interna tional entity distinct from the United States and that, while the MNF-I is under unified American command, the same was true of the multinational force in Hirota. See, e.g., Gov't C.A. Br. 5-6, 30; Gov't C.A. Reply Br. 5-6; 9/11/2006 Tr. 10-13, 20-21.

Respondent tries (Br. in Opp. 3, 14, 16) to manufac ture a concession from snippets of the oral argument in the court of appeals. But as explained (Pet. 12 n.3), the government explicitly stated that it would "mischarac teriz[e]" its position to say that United States forces do not operate "subject to the multi-national authority." 9/11/2006 Tr. 20-21. Likewise, the government repeat edly made clear its position that the basic "relationship between the United States and the multi-national force that it's acting a part of is no different than the relation ship between the United States and the allied powers [in Hirota]." Id. at 12-13; see id. at 10-11.1

In any event, the court of appeals itself recognized that this case is like Hirota in that respondent is de tained abroad by a multinational force, but nevertheless held that "the critical factor in Hirota was the petition ers' convictions by an international tribunal." Pet. App. 11a, 12a. Thus, the question whether Hirota is so lim ited is squarely presented.

2. Respondent suggests (Br. in Opp. 23-24) that the jurisdictional question is not sufficiently important to warrant this Court's review. But the detainee in Munaf, represented by respondent's counsel, is seeking review of the same question and has suggested that it has "sur passing importance." Pet. at 10, Munaf, supra. To the extent that respondent seeks to minimize the potential breadth of the court of appeals' ruling by arguing that it is by its terms limited to citizens, his suggestion has no support in the text of the opinion below. To the con trary, the court of appeals declined to base its jurisdic tional rule on the citizenship of the habeas petitioner and held instead that "the critical factor in Hirota was the petitioners' convictions by an international tribunal." Pet. App. 12a. And in Munaf, the court of appeals ex pressly stated that citizenship is not relevant to that jurisdictional holding. 482 F.3d at 583-584.

In any event, the jurisdictional question plainly war rants review. As the district court in Munaf observed, "no court in our country's history, other than [in the Omar case], has ever found habeas corpus jurisdiction over a multinational force comprised of the United States acting jointly with its allies overseas." Moham med v. Harvey, 456 F. Supp. 2d 115, 130 (D.D.C. 2006). Likewise, as Justice Jackson observed with respect to Hirota, the exercise of judicial review in such circum stances may directly interfere with the conduct of the Nation's foreign affairs and our international commit ments. See Hirota v. MacArthur, 335 U.S. 876, 878 (1948) (statement respecting oral argument); Pet. 25.

B. The Injunction Question Warrants Review

This case presents a complementary and equally im portant question concerning the courts' exercise of their asserted jurisdiction. The court of appeals affirmed an "uprecedented" injunction (Pet. App. 37a (Brown, J., dissenting in part)) barring the MNF-I from: transfer ring respondent to Iraqi authorities; sharing with the Iraqi government details concerning any release of re spondent; or allowing respondent to appear before Iraqi courts to answer for alleged crimes committed in Iraq. Id. at 20a, 23a, 25a. That injunction not only intrudes on the Executive's war powers and foreign affairs func tions, it bars a foreign sovereign from trying individuals for offenses committed within its own borders, in direct contravention of this Court's precedent. See Pet. 16-24; Pet. App. 33a-37a (Brown, J., dissenting in part).

1. Respondent argues (Br. in Opp. 13) that this Court should deny review because "the consequences about which the government complains do not follow from the preliminary injunction," but instead "flow from a hypothetical permanent injunction." But there is nothing "hypothetical" about the injunction at issue. That injunction blocks the MNF-I from transferring respondent to Iraqi custody now. It blocks the MNF-I from communicating with Iraqi authorities about any release of respondent now. And it blocks the MNF-I from permitting the Iraqi courts to try respondent now for crimes committed in that country. Thus, the embar rassment to the Executive in its conduct of foreign af fairs, and the affront to Iraqi sovereignty, are occurring now.2

2. Respondent argues (Br. in Opp. 13, 26-29) that the injunction is a "discretion[ary]" application of the district court's authority to preserve its asserted juris diction to adjudicate the case. As respondent concedes (id. at 32), however, whether to grant a preliminary in junction turns in part on a plaintiff's "likelihood of suc cess on the merits." See Pet. App. 20a; id. at 35a (Brown, J., dissenting in part). The district court erred in entering a preliminary injunction against the transfer of respondent to Iraqi custody because, as a matter of law, respondent is not entitled to that relief on the mer its. Id. at 35a (Brown, J., dissenting in part); Pet. 17-22. Thus, the legal questions presented here concerning the MNF-I's authority to transfer respondent to Iraqi cus tody are directly relevant to-indeed, dispositive of- the validity of the preliminary injunction.

This Court has granted review of other preliminary injunctions under similar circumstances. See, e.g., Gon zales v. O Centro Espirita Beneficente Uniao do Vege tal, 546 U.S. 418 (2006); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001); Legal Servs. Corp. v. Velaz quez, 531 U.S. 533 (2001); Saenz v. Roe, 526 U.S. 489 (1999).

3. Respondent argues (Br. in Opp. 31) that the gov ernment forfeited its challenge to the preliminary in junction because, in the lower courts, "the government argued only that the court lacked jurisdiction." Quite to the contrary, most of the government's court of appeals brief raised non-jurisdictional arguments. Compare Gov't C.A. Br. 21-32 (arguing that the courts lack juris diction under Hirota), with id. at 33-59 (arguing that "the district court's injunction violates fundamental principles of the constitutional separation of powers," id. at 33, and exceeds the scope of permissible relief); and Gov't Reply Br. 4-18 (jurisdiction), with id. at 18-31 (injunction). The government argued that, even apart from Hirota, the courts lacked authority to enjoin the "[t]ransfer of [respondent] to Iraqi physical custody." Gov't C.A. Br. 58; see id. at 34-41, 46, 48, 50-54, 58-59.

Moreover, the court of appeals majority specifically addressed the government's challenge to the prelimi nary injunction. See, e.g., Pet. App. 20a. And the dis sent pointedly joined issue on the validity of the injunc tion. Id. at 34a-35a. Thus, the validity of the injunction was both pressed and passed upon in the court of ap peals-either of which is sufficient to preserve the issue for this Court's review. See, e.g., Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 379 (1995).

It is true that the court of appeals majority tried to side step the government's argument that no statutory or treaty authorization is required for the Executive to transfer a person captured within a foreign country to that country's custody for trial under the laws of that country. See Pet. App. 25a; see also Gov't C.A. Br. 44; Gov't C.A. Reply Br. 26. As explained (Pet. 17-18), how ever, that effort serves only to underscore the court of appeals' error and the need for this Court's review; it certainly does not lessen the need for further review.

Furthermore, the court of appeals' decision sustain ing the injunction directly conflicts with Wilson v. Gi rard, 354 U.S. 524 (1957), in which, as Judge Brown ex plained, this Court "reversed an injunction against transfer very much like the one at issue here." Pet. App. 36a n.5; see Pet. 18-19. As respondent recognizes, Wil son reversed an injunction against the United States' transfer of an American soldier within Japan to Japa nese authorities for prosecution under Japanese law because, as in this case, "no statute affirmatively pre cluded transfer." Br. in Opp. 33 (emphasis added); see Wilson, 354 U.S. at 529-530. That result follows from the foreign sovereign's "exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction." Id. at 529; see Pet. App. 35a-36a (Brown, J., dissenting in part).3

4. Respondent objects (Br. in Opp. 35) that he has not yet developed a full record on "his innocence." But the procedural posture of this case is no barrier to re viewing the legal questions presented, and leaving the injunction in place and allowing fact finding or discovery would only exacerbate the intrusion on the sovereign prerogatives of Iraq, our international commitments, and the Executive's conduct of foreign affairs. More over, such inquiries are no more relevant to the validity of the injunction against transfer than they were in Wil son. It is for the Iraqi courts to gather and assess the evidence against respondent and determine whether to convict him under Iraqi law for any offenses committed in Iraq, and it is well-settled that United States courts may not be used to collaterally attack such foreign pro ceedings. See Neely v. Henkel (No. 1), 180 U.S. 109, 123 (1901); see Pet. 17-23; Pet. App. 36a (Brown, J., dissent ing in part).4

Similarly, evidence about whether respondent would be mistreated by Iraqis (Br. in Opp. 35) is irrelevant to these judicial proceedings. The United States would object to the MNF-I's transfer of respondent to Iraqi custody if it believed that he would be tortured. Under the Rule of Non-Inquiry, however, the Executive has sole discretion to make that determination, which can rest on the Executive's assessment of the reliability of diplomatic assurances. Pet. 20-21 & n.9; Pet. App. 38a n.6 (Brown, J., dissenting).5

C. The Court Should Grant The Petition In This Case And Hold The Petition In Munaf

While this case and Munaf present the same thresh old jurisdictional issue, this case provides a better vehi cle for considering the full set of issues concerning the authority of United States courts to review the detention and transfer of individuals captured abroad by a multi national force operating under international authority, because of the injunction entered by the district court in this case. Pet. 26. In addition, the Munaf petitioners have agreed that, if the Court grants the petition in this case, it should hold the Munaf petition pending its dis position of this case. See Reply at 2, Munaf, supra. Alternatively, this Court could grant both petitions and consolidate the cases for oral argument.6

* * * * *

For the foregoing reasons and those stated in the petition for a writ of certiorari, the petition should be granted.

Respectfully submitted.

 

 

PAUL D. CLEMENT
Solicitor General

 

 

NOVEMBER 2007

1 Respondent's use of an ellipsis (Br. in Opp. 3) in characterizing the government's response to the question whether it "agree[d] with the District Court that Omar is in the authority and control of the United States" (9/11/2006 Tr. 11-12) is highly misleading. The full response was: "It is, Your Honor, as it was in the Hirota case. And I want to be clear on that. In the Hirota case, the Supreme Court made clear, and certainly Justice Douglas made clear in its decision, that petitioner was being physically held by United States forces." Id. at 12.

2 Respondent asserts (Br. in Opp. 30 n.17) that "[t]here is no evidence in the record * * * that any [Iraqi] proceedings ever began." But the injunction was requested-and entered-to block such pro ceedings. See Pet. App. 41a-42a, 104a.

3 That does not mean, as respondent asserts (Br. in Opp. 34), that the government could surrender United States citizens "in the United States" for prosecution abroad without treaty or statutory authoriza tion. That is an extradition. But the transfer of a fugitive like respon dent within a foreign country is not an extradition, and thus is not limited by the rules governing extraditions. See Pet. 17; Pet. App. 35a- 36a (Brown, J., dissenting in part). The statement in a district court pleading cited by respondent is not to the contrary; that statement addressed the need for extradition in the hypothetical event that res pondent were returned to the United States, not respondent's transfer within Iraq. See Br. in Opp. 23 n.11.

4 Respondent is incorrect in saying (Br. in Opp. 35) that he has "had no opportunity to demonstrate his innocence." Respondent was affor ded a hearing by an MNF-I panel modeled on Article 5 of the Geneva Convention, see Pet. 14 n.4-process that Hamdi indicated would be constitutionally adequate for a citizen enemy combatant detained in the United States. See 542 U.S. at 538.

5 Respondent's contention (Br. in Opp. 2) that the factual allegations of his habeas petition must be taken as true is incorrect. Because this case comes before this Court on review of a grant of a preliminary injunction, not on a motion to dismiss for failure to state a claim, the facts in the habeas petition are not assumed to be true. See, e.g., Fed. R. Civ. P. 65(a)(2) (providing for the receipt of "evidence * * * upon an application for a preliminary injunction").

6 The contention in the Munaf reply (at 1) that the government has "[r]etreat[ed] from its position below," and that the Court should grant, vacate, and remand Munaf in light of a changed position, is baffling. The government has always argued that the United States courts lack habeas jurisdiction under Hirota whenever a multinational force acting under international law detains an individual. E.g., Gov't C.A. Br. at 17- 21, Munaf, supra; Gov't Pet. Resp. at 10-13, Munaf, supra. The gov ernment has also argued, in the alternative, that Munaf's criminal con viction by an Iraqi court provides a further reason for dismissing his habeas petition, in part because that petition amounts to an impermissi ble collateral attack on his foreign conviction. E.g., Gov't C.A. Br. at 48- 56, Munaf, supra; Gov't Pet. Resp. at 15-17, Munaf, supra. There has been no "retreat" from any position.