Terrorism

Since 2004 the U.S. military had detained Shawqi Omar, a dual citizen of Jordan and the U.S., in Iraq on the basis of evidence he had participated in al Qaeda’s terrorist activities there. The U.S. government apparently intended to transfer him to the custody of Iraq. In 2005 Omar filed a habeas petition claiming the right to judicial review of conditions in Iraq before being transferred there, and that he had a habeas and due process right not be transferred if (as he alleged) he was likely to be tortured while in Iraqi custody. In 2008 the U.S. Supreme Court in Munaf v. Geren, 553 U.S. 674 (2008), concluded that Omar had neither a habeas corpus nor a due process right to “judicial secondguessing of the Executive’s determination that he was not likely to be tortured in Iraqi custody.” [Slip op. 2]

In his amended habeas petition to the district court, Omar posed both a novel statutory argument—that the Foreign Affairs Reform and Restructuring Act of 1998 (FARR), as supplemented by the REAL ID Act of 2005, gave him the right to the judicial review he sought—and a refashioned constitutional argument—that the habeas corpus guarantee, either by itself or in conjunction with the Due Process clause or FARR, entitled him to the review. The district court rejected both arguments, granting the Government’s motion to dismiss.

In affirming the district court’s decision, the U.S. Court of Appeals for the D.C. Circuit concludes that Omar’s constitutional argument already had been authoritatively addressed and rejected in Munaf, stating: “The Supreme Court has established that there is no freestanding constitutional right for extradition or military transferees to obtain judicial review of conditions in the receiving country before being transferred.” [Slip op. 15] The Appeals Court likens Omar’s status to that of an extradition or military transferee: “Omar is a military detainee captured during war and now facing transfer to the custody of another nation.

In addition, because Omar is facing transfer to the custody of another sovereign that has convicted him of a crime, his situation is analogous to that of an extradition transferee—a point Omar himself acknowledges.” [Slip op. 12]

To Omar’s argument that the REAL ID Act, to the extent it amended FARR, violated the Constitution’s guarantee of habeas corpus, the Appeals Court states while FARR does allow aliens in removal proceedings to obtain the type of judicial review Omar seeks, in FARR on its own...