Habeas Relief Precludes Transfer of American to Iraqi Court

The antecedent question–whether Omar’s transfer even requires treaty or statutory authorization–is also fully justiciable. On the merits, the government will surely argue that under Article II of the Constitution, the military needs no express authority to transfer detainees like Omar. Resolving this claim will involve difficult questions of constitutional law–questions which, significantly for our purposes, will require no judicial intrusion into the exclusive domain of the political branches. To be sure, a decision on the merits might well have implications for military and foreign policy, but that alone hardly makes the issue non-justiciable…. This case, like Youngstown and Curtiss-Wright … presents constitutional issues that courts can resolve without making any judgments about foreign policy or the war in Iraq.

To be sure, as the government argues, Iraqi authorities might arrest Omar the moment U.S. forces release him. Expanding on this point, the dissent speculates that “if the government simply releases Omar and allows him to walk out of Camp Bucca, he might well find a dozen armed Iraqi soldiers waiting for him.” The dissent also thinks that U.S. military officials could “notify Iraqi authorities as to the exact time and place of [his] release, thereby effectively ensuring his immediate recapture and detention.” As a result, the dissent maintains, Omar has failed to demonstrate irreparable injury because even if he prevails at his habeas hearing, he may nonetheless end up in Iraqi custody. We disagree…. At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities. Nor do we have any idea what would happen to Omar once released. Perhaps he would end up in Iraqi custody, but perhaps he would not. For example, perhaps because of developments at the habeas hearing, such as the appearance of defects in the government’s case or the introduction of exculpatory evidence, the Iraqis would decide that Omar is no longer worth prosecuting. Or perhaps by the time the district court ordered Omar’s release, Iraqi priorities would have changed, leaving Iraqi authorities uninterested in allocating scarce military resources–much less the dissent’s dozen soldiers–to his arrest. The point is that on the record before us at this stage of these proceedings, neither the government nor the dissent nor we can possibly know what would happen to Omar if the district court barred his transfer and ordered his release. Given this uncertainty, a preliminary injunction protecting Omar from the certainty of transfer now is hardly an “empty gesture.”

The dissent’s speculation about a U.S. military “tip-off” to the Iraqis suffers from a second defect. If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him either directly through a formal handoff or indirectly by “releasing” him with a wink-and-a-nod to the Iraqis. The United States may certainly share information with other sovereigns, but it may not do so in a way that converts Omar’s “release” into a transfer that violates a court order. The district court has jurisdiction to hear Omar’s habeas petition, see part III supra, and federal courts have authority to enforce their orders; contrary to the dissent, the political question doctrine is not implicated. In any event, we think it exceedingly unlikely that American military officers, sworn to uphold the law and represented by the Justice Department, would evade an order of a United States district court. Indeed, if the district court orders Omar’s release, we are confident that military officials and their lawyers will work in good faith with the district court to fashion an order that, based on then-existing circumstances, ensures his lawful release from American custody.

The government’s observation that “a court may not artificially prolong a case or controversy by issuing an injunction the effect of which is to prevent the Government from rendering the petition moot by granting relief,” though undoubtedly correct, has nothing to do with the issue before us. Because the military plans to transfer Omar to Iraqi authorities, not to release him, the preliminary injunction, far from “prevent[ing] the Government from rendering the petition moot by granting relief,” preserves the district court’s jurisdiction to review the lawfulness of that transfer.

Because Omar seeks an injunction against his transfer to Iraqi authorities, we have to assume that the United States seeks to transfer him to Iraqi authorities and that Iraqi authorities seek to gain custody. Therefore, if the government simply releases Omar and allows him to walk out of Camp Bucca, he might well find a dozen armed Iraqi soldiers waiting for him. This possibility becomes an inevitability if United States military officials notify Iraqi authorities as to the exact time and place of Omar’s release, thereby effectively ensuring his immediate recapture and detention….. In short, the practical effect of Omar’s release with a tip-off to Iraqi authorities would be indistinguishable from his formal transfer to those authorities. Therefore, absent a limitation on intergovernmental communication, an injunction against transfer will have no significant effect on the likelihood of Omar’s detention by Iraq subsequent to his release from United States custody.

But information sharing among sovereigns regarding the location of persons subject to arrest is a common and desirable practice, particularly in a situation like that in present-day Iraq, where the United States military is cooperating with Iraqi authorities to secure the country. Any judicial order barring this sort of information sharing in a military zone would clearly constitute judicial interference in a matter left solely to Executive discretion and would hence be improper under the political question doctrine. Thus, the courts are powerless to enjoin the United States from informing Iraqi officials about the planned release of Omar, and under these circumstances, an injunction against outright transfer is an empty gesture that cannot be sustained.

The majority recognizes the practical equivalence between transferring Omar and ” ‘releasing’ him with a wink-and-a-nod to the Iraqis,” but draws the opposite conclusion. The majority’s logic proceeds as follows: (1) An injunction barring transfer is permissible. (2) Unrestricted inter-governmental communication could convert release into transfer. (3) Therefore, federal courts must have the power to limit intergovernmental communication, in order to give effect to the main injunction against transfer. Summarizing its position, the majority declares: “The United States may certainly share information with other sovereigns …, but it may not do so in a way that converts Omar’s ‘release’ into a transfer that violates a court order.” Id . This is a striking conclusion. The majority in effect holds that, in the proper circumstance, a single unelected district court judge can enjoin the United States military from sharing information with an allied foreign sovereign in a war zone and may do so with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture. The trespass on Executive authority could hardly be clearer.