Two United States citizens who had traveled voluntarily to Iraq, Shawqi Omar and Mohammad Munaf, were held there by United States forces operating as part of the Multinational Force-Iraq, pending investigation and prosecution in Iraqi courts. Munaf had been convicted of kidnapping by the Central Criminal Court of Iraq; the Iraqi Court of Cassation vacated the conviction and remanded for further investigation, directing that he remain in custody. In Omar’s case a district court had barred his removal from United States or coalition custody, and the D.C. Circuit upheld the injunction insofar as it prohibited transfer to Iraqi custody. The Court held unanimously that the habeas statute “extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition.” But it held that “[u]nder circumstances such as those presented here, however, habeas corpus provides petitioners with no relief,” and that “the habeas petitions should have been promptly dismissed, and that no injunction should have been entered.” Munaf’s petition alleged that transfer to Iraqi custody was likely to result in torture. The Court wrote: “Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the Judiciary.” It recorded that “[p]etitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway.” The Solicitor General had stated “that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result,” and that such determinations rest on “the Executive’s assessment of the foreign country’s legal system and . . . the Executive[’s] . . . ability to obtain foreign assurances it considers reliable.” The Court held: “The Judiciary is not suited to second-guess such determinations.” The petitioners also invoked the Foreign Affairs Reform and Restructuring Act of 1998. The Court declined to consider it because “[n]either petitioner asserted a FARR Act claim in his petition for habeas,” adding: “We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand.” It observed that “[i]t is not settled that the Act addresses the transfer of an individual located in Iraq to the Government of Iraq.” Justice Souter, joined by Justices Ginsburg and Breyer, joined the opinion because he considered its listed circumstances essential to the holding, and wrote that “nothing in today’s opinion should be read as foreclosing relief for a citizen of the United States who resists transfer, say, from the American military to a foreign government for prosecution in a case of that sort, and I would extend the caveat to a case in which the probability of torture is well documented, even if the Executive fails to acknowledge it.”
Caution The holding is tied to its facts: citizens who traveled voluntarily to Iraq, held there at the request of the Iraqi Government during ongoing hostilities, whom Iraq sought to prosecute for crimes committed on its territory, with an executive determination about Iraqi prison standards. The Court expressly set aside the “more extreme case” in which the Executive has determined that torture is likely, and it did not decide any claim under the Foreign Affairs Reform and Restructuring Act. No removal or immigration proceeding was involved.
Transfer of detainees CAT Diplomatic assurances Rule of non-inquiry Habeas jurisdiction Due process
The court's own text
Public copy Copy held by the Coalition
Read in full from the official text in the United States Reports, volume 553, pages 674 to 707, as published by the Library of Congress.
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