U.S. Court Blocks Transfer of U.S. Prisoner to Iraqi Government

The U.S. Court of Appeals for the D.C. Circuit yesterday upheld a lower court order barring U.S. forces in Iraq from transferring a U.S.-citizen enemy combatant to Iraqi custody. The case, Omar v. Harvey, is a potentially important one because it indicates that U.S. federal courts will continue to maintain habeas corpus jurisdiction, even where petitioners are held by U.S. forces overseas.

To reach this result, the DC Circuit opinion had to get past some World War II precedent, Hirota v. MacArthur, denying petitions by Japanese prisoners held by U.S. military authorities occupying Japan. The Court distinguished Hirota by noting that in this case, the petitioner Omar is a U.S. citizen. More broadly, the Court suggested that as long as its interventions do not challenge a final judgment of a foreign or international tribunal, the limitations imposed by Hirota do not apply. Moreover, the political question doctrine does not apply either, the Court held.

I’m not sure yet what I think about this analysis. It seems relatively harmless since the number of U.S. citizen enemy combatants has got to be pretty small. Still, it also highlights just what is at stake in the litigation over Section 7 of the Military Commissions Act of 2006. Absent that provision, any Iraqi held in U.S. military custody would seem to have access to U.S. courts to challenge their detention. If that provision goes down, expect to see a whole new wave of habeas petitions out of Iraq.