482 F.3d 582 | D.C. Cir. | 2007
Lead Opinion
Opinion for the Court filed by Circuit Judge SENTELLE.
Opinion filed by Circuit Judge RANDOLPH, concurring in the judgment.
Mohammad Munaf, an American citizen, traveled to Iraq in 2005. In October 2006 he was convicted on kidnapping charges and sentenced to death by the Central Criminal Court of Iraq (“CCCI”). He is
Our result is required by the Supreme Court’s decision in Hirota v. MacArthur, 338 U.S. 197, 69 S.Ct. 197, 93 L.Ed. 1902 (1948), as that decision has been applied by this court in Flick v. Johnson, 174 F.2d 983 (D.C.Cir.1949), and interpreted by Omar v. Harvey, 479 F.3d 1 (D.C.Cir.2007). In Hirota, Japanese citizens sought permission to file petitions for writs of habeas corpus directly in the United States Supreme Court. The petitioners were held in Japan, where they had been tried by a military tribunal authorized by General Douglas MacArthur acting as the Supreme Commander for the occupying Allied Powers, Hirota, 338 U.S. at 198, 69 S.Ct. 197. In a short per curiam opinion the Supreme Court concluded that the sentencing tribunal “[was] not a tribunal of the United States” and held that “[u]nder the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners.” Id.
Flick involved a habeas petition filed in the United States District Court for the District of Columbia by a German citizen held in Germany by American forces after he was convicted by a military tribunal. 174 F.2d 983. Relying on Hirota, we framed the jurisdictional question as follows: “Was the court which tried and sentenced Flick a tribunal of the United States? If it was not, no court of this country has power or authority to review, affirm, set aside or annul the judgment and sentence imposed on Flick.” Id. at 984. Finding that the military tribunal was not a U.S. court, we held that the district court lacked jurisdiction to review Flick’s habeas petition. Id. at 986.
Our recent decision in Omar involved a habeas petition filed on behalf of a United States citizen being held in Iraq by U.S. forces acting as part of the MNF-I. Omar, 479 F.3d at 2. As in Hirota and Flick, Omar involved detention overseas and a multinational force. But unlike the petitioners in Hirota and Flick, Omar had not been charged or convicted by a non-U.S. court. We distinguished Hirota and Flick on this basis and went on to hold that the district court had jurisdiction to hear Omar’s habeas claim. Slip op. at 12-14.
Unlike Omar, the instant case is controlled by Hirota and Flick. The MNF-I is a multinational force, authorized by the United Nations Security Council, that operates in Iraq in coordination with the Iraqi government. The CCCI is an Iraqi criminal court of nationwide jurisdiction and is administered by the government of Iraq; it is not a tribunal of the United States. Accordingly, the district court has no power or authority to hear this case.
Munaf contends that Hirota and Flick do not control because, like Omar and unlike the petitioners in Hirota and Flick, Munaf is a United States citizen.
Munaf also argues that he does not challenge his conviction by the Iraqi court but rather the lawfulness of his detention at the hands of United States military personnel. As with Munafs citizenship argument, we do not think that Hirota and Flick can be distinguished on this ground. In Hirota and Flick, as in this case, U.S. forces who were operating as part of a multinational force detained the petitioners. And as in those cases, continued confinement is dependent on a conviction by a court not of the United States— specifically, a multinational tribunal in Hi-rota and Flick and, in this case, the CCCI, which is a foreign tribunal. The fact that the MNF-I is not an arm of the Iraqi government but rather cooperates with Iraq and its courts in matters of detention does not bring this case outside the scope of Hirota. Munaf states in his brief that “[e]ven if the Iraqi charges were dismissed tomorrow the United States does not suggest [Munaf] would be released.” But the district court’s jurisdiction to inquire into such matters is precisely the issue; if the charges were dismissed, and United States forces were to continue to hold Munaf, this would be a different case. Under Omar the district court arguably would have jurisdiction over Munafs habeas claim.
* * * * * *
One final point deserves emphasis. In holding that the district court lacks jurisdiction, we do not mean to suggest that we find the logic of Hirota especially clear or compelling, particularly as applied to American citizens. In particular, Hirota does not explain why, in cases such as this, the fact of a criminal conviction in a non-U.S. court is a fact of jurisdictional significance under the habeas statute. And as we acknowledged in Omar, the Supreme Court’s recent decisions in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633,
For the reasons discussed above, the judgment of the district court is
Affirmed.
. Munaf was born in Iraq and was naturalized as a United States citizen in 2000.
. Munafs conviction was automatically appealed to the Iraqi Court of Cassation. At oral argument, Munafs counsel stated that the status of that appeal is unclear.
Concurrence Opinion
concurring in the judgment.
I believe the district court had jurisdiction over Munafs habeas corpus petition. The critical considerations are that Munaf is an American citizen and that he is held by American forces overseas. Hirota v. MacArthur, 338 U.S. 197, 69 S.Ct. 197, 93 L.Ed. 1902 (1948) (per curiam), in which the habeas petitioners were Japanese citizens held in Japan, therefore does not apply. There is a longstanding jurisdictional distinction between citizens and aliens detained outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763, 781, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), decided two years after Hirota, the Court held that it lacked jurisdiction to issue writs of habeas corpus for German prisoners held by the United States in Germany. But the Court stated that its holding did not apply to American citizens, to whom the “Court long ago extended habeas corpus” when they were held outside the United States. See id. at 769-70, 70 S.Ct. 936 (citing Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369 (1908)).
It is hardly surprising then that eight of the nine Justices in Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), explicitly agreed that American citizens held by American officials overseas could invoke habeas jurisdiction. For himself and four other Justices, Justice Stevens wrote that “[a]liens held at the [Guantanamo Bay Naval] base, no less than American citizens, are entitled to invoke the federal courts’ authority under [28 U.S.C.] § 2241.” Id. at 481, 124 S.Ct. 2686. Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, stated that “[n]either party to the present case challenges the atextual extension of the habeas statute to United States citizens held beyond the territorial jurisdictions of the United States courts,” “[a]nd that position — the position that United States citizens throughout the world may be entitled to habeas corpus rights — is precisely the position that this Court adopted in Eisen-trager ... even while holding that aliens abroad did not have habeas corpus rights.” Id. at 497, 502, 124 S.Ct. 2686 (Scalia, J., dissenting) (citation omitted).
It is true that Omar v. Harvey, 479 F.3d 1, 7 (D.C.Cir.2007), distinguished Hirota and Flick v. Johnson, 174 F.2d 983 (D.C.Cir.1949), on the ground that in both cases the alien petitioners held overseas had been convicted by an international tribunal. But Omar did not speak to the jurisdictional issue confronting us here. To extend Hirota to habeas petitions filed by American citizens not only would contradict Eisentrager and the majority and dissenting opinions in Rasul, but also would constitute an unwarranted extension of an opinion that “articulates no general legal principle at all,” Omar, 479 F.3d at 6.
