I haven't had a chance yet to blog about last Friday's D.C. Circuit decision in Mohammed ex rel. Munaf v. Geren, in which a divided panel affirmed Judge Lamberth's dismissal
of a habeas petition brought by a U.S. citizen convicted and sentenced
to death by Iraq's Central Criminal Court (the "CCC-I"), and in the
custody of the Multinational Force-Iraq. Writing for Judge Kavanaugh
and himself, Judge Sentelle found jurisdiction entirely foreclosed by
the Supreme Court's 1948 decision in Hirota v. MacArthur, notwithstanding a different panel of the D.C. Circuit's decision to the contrary in February in Omar v. Harvey, which I blogged about here.
(The critical factual distinction is that Omar has not yet been tried
by the CCC-I, let alone convicted.) Lyle Denniston provided his
typically thorough coverage over at SCOTUSBlog in posts last Friday and this Monday.
Concurring in the judgment on the merits, Judge Randolph strongly
disagreed on the jurisdictional holding, relying on the fact that Munaf
is a U.S. citizen. According to Randolph, Hirota doesn't apply to U.S. citizens, and even if it did when it was handed down, subsequent developments, most notably dicta in Johnson v. Eisentrager and the logic, if not the language, of Rasul v. Bush, compel such a result.
As most readers probably know, I have an article coming out in a couple of weeks in the Georgetown Law Journal about precisely the issue raised in these cases: Whether Hirota
can be distinguished based upon citizenship, and, if not, whether it
therefore precludes jurisdiction over all of these cases. (Fortunately
for me, the D.C. Circuit decided Mohammed just before press
time, so I was able to sneak in some cursory analysis of last Friday's
decision). I've blogged previously about the article and the bigger
issue here and here.
I mention all of this because last Friday's decision, to me, perfectly highlights the myriad problems with Hirota, and the dangerous implications for U.S. citizens abroad.
Right off the top, let me say one thing: I think Judge Sentelle was
absolutely correct. Although the majority opinion never says as much,
to the extent that Hirota is a rule about the scope of federal
jurisdiction under Article III, and not the federal habeas statute
(which it unquestionably is), it doesn't make any sense why a
constitutionally-grounded limitation on federal jurisdiction would
apply when the petitioner is not a U.S. citizen, but would not apply
when he is.
The harder question, methinks, is the one raised in Omar. Unlike Mohammed, Omar raises the question of whether Hirota also precludes jurisdiction when a detainee has not yet been convicted by a foreign or international court. Hirota itself was not such a case; the petitioner had been convicted, however dubiously, by the Tokyo war crimes tribunal.
But as I argue in my article, the claims Hirota raised before the
Supreme Court had nothing to do with a challenge to the trial or
conviction; he challenged various aspects of his detention and custody
by the U.S. military, and so it's not at all clear why Hirota wouldn't also apply to similar challenges _without_ the additional fact of a conviction.
Undeterred, Judge Randolph argues that U.S. citizens are different, and invokes Eisentrager and Rasul in support. But the discussion of the constitutional rights of U.S. citizens in Eisentrager was dicta (since the case was about enemy aliens convicted by a military tribunal), and Rasul was about the scope of the federal habeas _statute_, and not the constitutional right to habeas corpus.
More to the point, as I argue in my article, the D.C. Circuit in a case called Flick v. Johnson [174 F.2d 983, not publicly available] applied Hirota even
in a situation where the petitioners _had_ a constitutional right to
habeas corpus (a result of the D.C. Circuit's decision in Eisentrager, which had not yet been reversed by the Supreme Court). I wish Judge Randolph were correct, but I fear that, ultimately, if Hirota
means what (little) it says, its rule applies irrespective of
citizenship, and irrespective of whether the challenge is pre- or
post-conviction. So long as a detainee is in foreign or international
custody, Hirota precludes federal courts from considering
habeas claims, even where the petitioner alleges the "constructive
custody" of the United States.
To his credit, there are various places in Judge Sentelle's opinion where he suggests that the result is compelled by Hirota, but that he might not come out the same way if he weren't bound to follow precedent.
So where do we go from here? The government is seeking rehearing en banc in Omar, which would provide the full D.C. Circuit the chance to decide whether Omar and Mohammed are irreconcilable (as, ultimately, I suspect they are). But even the en banc court can't overrule Hirota,
which is why I think it may now be inevitable that the Supreme Court
have the opportunity to revisit the obtuse 59-year-old decision.
More to the point, it's important that the Court do so. Whether Hirota
was soundly reasoned at the time (a proposition I dispute rather
vigorously in my article), we have long since developed far more
principled distinctions between the existence of jurisdiction and the
merits. Thus, even if one is ultimately of the view that Munaf and Omar
(et al.) don't have strong substantive claims, it should be up to U.S.
courts, to the extent that the petitioners allege the constructive
custody of the United States, to decide. In that regard, the two
opinions handed down last Friday in Mohammed provide a perfect vehicle both for flagging the scope of the issue, and for getting the Supreme Court's attention, if Omar hadn't already.
