Good Day in Gitmo, Bad Day in Iraq

by Deborah Pearlstein

While there’s much, much more to be said on the Supreme Court’s blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee.

In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), Munaf and Omar would lose on the merits of their habeas claims—and there’s therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.

The detainees’ key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is “of concern,” but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination.

Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the “extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway.” But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it’s a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have “significant human rights problems,” including “torture and other cruel, inhuman, or degrading punishment” and “[a]busive interrogation practices” including “rape, torture and abuse, sometimes leading to death.”

I’m not sure which is more remarkable about the decision—the fact that it was unanimous or the fact that the court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I’ll say it was the decision to reach out and decide the merits—of a piece, one might note, with Justice Kennedy’s paean to the role of the federal courts in such matters in Boumediene itself: “Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.” Read: We’ve been holding back. We’re no longer so inclined.

[Cross-posted at Convictions]

4 Responses

  1. Deborah — I guess I was surprised that the Court even reached the merits, given that Omar came up as a preliminary injunction, and Munaf was decided entirely on jurisdictional grounds. My question for you is whether you think the precedential force of the merits holding in Munaf is as big a deal as the jurisdictional holding? I’m not sure myself, and hope we don’t ever really need to find out (but am not holding my breath)…

  2. I think the voluntarily going to Iraq is a big thing here – they took the chance to go to the dance. The thing that is left is the involuntary situation and that is going to be more thorny. Of course the horrendous thing is that the amicus cites US reports but the representatives of the US do not – tells us the state of life over at State I guess.

    On the “transfer” idea, I hope folks saw Bellinger today in Congress defending the extraordinary renditions – distinguishing Arar to Syria as not an extraordinary rendition but as an immigration matter. Way to play to prejudices John – makes me sick. You can see a summary over at Jurist.



  3. Bellinger. How can anyone who knows the full history of that infamous program, publicly defend the same?

  4. Bellinger. How can anyone who knows the full history of that infamous program, publicly defend the same?

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