Habeas Corpus

• Author: International Law Group
• Pages: 28-29

Page 28

U.S. military forces in Iraq captured Shawqi Ahmad Omar (Petitioner), a U.S. citizen, in late 2004. They held him for two years incommunicado, and were planning to ship him over to Iraqi authorities for trial on terrorism charges. Petitioner claims he was in Iraq merely looking for reconstruction-related work. The Government alleges, to the contrary, that Petitioner belonged to the terrorist network of Abu Musab al Zarqawi, and that authorities found weapons and bomb-making materials with him.

In August 2005, a panel of U.S. military officers did decide to turn Omar over to the Central Criminal Court of Iraq (CCCI) for trial. This Court has national jurisdiction over various criminal offenses, including local terrorism.

Omar's wife and son petitioned for a writ of habeas corpus on his behalf in the District of Columbia federal court. To preserve its jurisdiction over the petition, that court issued a preliminary injunction against his transfer to Iraq.

The Government appealed, claiming (1) that the district court lacked jurisdiction to hear the habeas petition and (2) that the transfer to Iraqi authorities actually grants Petitioner the relief he is seeking, i.e., the release from U.S. custody.

The Government relies primarily on Hirota v. MacArthur, 338 U.S. 197 (1948). There the Court held that World War II Japanese officials could not invoke habeas corpus to challenge their convictions by a multinational military tribunal. In this case,Page 29 however, a majority of a U.S. Court of Appeals for the District of Columbia Circuit panel affirms.

Unlike the petitioners in Hirota and in Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), the Government has not charged Petitioner Omar with terrorism or a similar crime, much less convicted him of one. Moreover, Petitioner is not trying to collaterally attack a fi nal conviction by an international tribunal. He only seeks to test the lawfulness of his extra-judicial detention in Iraq, where he has remained in the control of U.S. forces for over two years without legal process.

"True, a panel of three military officers found him to be a 'security internee' and an 'enemy combatant,' but those determinations, based as they are on military considerations, are a far cry from trial, judgment, and sentencing. See [Hamdi v. Rumsfeld, 542 U.S. 507, 518-519 (2004)] (discussing enemy combatant status) ... Habeas proceedings here run no risk, as they did in both Hirota and Flick, of judicial...