Less than a week after hearing argument on whether Guantanamo detainees have constitutional rights, the Supreme Court took two more cases involving the rights persons detained by the US government abroad.
The cases are:
Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007) (Tatel, J.)
Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007) (Sentelle, J.)
In the Omar case, the DC Circuit held that Omar, an American citizen, could seek habeas relief after being captured by the US and multinational forces in Iraq and being threatened with imminent transfer to Iraqi custody.
In the Munaf case, the DC Circuit held almost the opposite -- that Munaf, an American citizen could not seek habeas relief while being held in US custody in Iraq after being sentenced to death by an Iraqi court.
Think about this as a personal matter for just a second: You are a US citizen and a civilian. You are travelling abroad. You are detained for some reason by the US Army -- and, under the law as stated in the Munaf opinion, you have no right to try to get any US judge to determine whether the Army can legally hold you at all.
Both cases involve the interpretation of the Supreme Court's precedent in Hirota v. MacArthur, 388 U.S. 197 (1948), which held (basically) that Japanese citizens held by US forces in Japan could not petition for habeas corpus in the US.
The fact that the Supreme Court took certiorari on these cases is very interesting. Although the Court often takes cases where there is a disagreement between or among the lower courts of appeals, I do not know of an instance where the Court took a case to resolve a difference of opinion in the precedents of a single Court of Appeals. Usually such splits can (and should be) resolved by the Court of Appeals itself through what is known as an "en banc" or "in bank" hearing.
It is also not clear which wing of the Court pressed for these cases to be heard (that is, the Roberts, Alito, Scalia, Thomas wing -- also known as the "Carl Schmitt Wing" -- or the Stevens, Souter, Ginsburg, Breyer wing. Whichever side of the Court it is, however, probably confident that it will be able to sway the vote of Justice Kennedy.
Why are these cases important? Well, forst off they may resolve the status of the thousands of prisoners who are being held and tortured in US custody in places like Afghanistan and other unknown so-called "black sites." Remember such detainees are not prisoners of war and have none of the protections that prisoners of war are entitled to as such under the Geneva Conventions. They can be -- and are -- tortured.
Here are links to the DC Circuit decisions and the briefing on whether the Supreme Court shoudl take the cases.
Omar:
D.C. Cir. opinion
Government cert petition
opposition
Munaf:
D.C. Cir. opinion
Munaf's cert petition
Government's opposition