Munaf v. Geren - Oral Argument

Argument of Gregory G. Garre

Chief Justice Roberts: We will hear argument first this morning in Case 06-1666, and the consolidated Case 07-394, Munaf versus Geren, Secretary of the Army, and Geren versus Omar.

Mr. Garre.

Mr. Garre: Thank you, Mr. Chief Justice, and may it please the Court: Under this Court's precedents and universal international law norms, the government of Iraq, like all sovereign nations, has a sovereign right and jurisdiction to try and punish individuals, including American citizens, who voluntarily enter its borders, commit crimes in its country, and remain there.

In two independent respects, the court of appeals in the Omar case lost sight of that principle and departed from this Court's precedents: First by exercising habeas jurisdiction at all; and second by sustaining an injunction that the court of appeals itself recognized prevented the government of Iraq from trying and punishing Mr. Omar for any crimes that he committed in Iraq.

As to the jurisdictional question, we believe that this Court's decision Hirota versus MacArthur points to the conclusion that habeas jurisdiction is lacking over these cases because the habeas petitioners are being held under international authority pursuant to determinations made by an international Multinational Force acting and carrying out a United Nations mandate, and in Mr. Munaf's case pursuant to an order of the Iraqi courts that he remain in custody while proceedings go forward in the trial court.

Justice Souter: Isn't the problem with the argument that Hirota did not at any point in the per curiam opinion saying... say, we're coming to the conclusion that we come to of no jurisdiction because there's an international force?

I mean, Hirota said, you know, there's this, that, and the other thing, and under all these circumstances we don't think there's jurisdiction.

Well, one of the things that's different here is you had Japanese soldiers in Hirota and you've got American citizens here.

Mr. Garre: Well, that is the difference, Justice Souter.

And I think, to be clear, if this Court does find jurisdiction in these cases, we think that citizenship would be a basis... would have to be the basis for jurisdiction, and we urge this Court to limit its decision to that ruling, because that would have profound practical consequences.

Justice Ginsburg: There's another difference, too.

There was a conviction and a sentence in Hirota, here in Omar's case he has not yet been as far as we know even investigated by the Iraqi courts, certainly no conviction; and in Munaf's case the conviction has been quashed.

Mr. Garre: That's true, and let me explain why we think that Hirota does govern the circumstances in this case, notwithstanding that this case involves citizens and notwithstanding that the Petitioners in Hirota had been the subject of an international conviction.

First of all, we don't think that Hirota would have come out differently if the habeas petitioners had filed suit earlier and sought to enjoin the international proceeding in Hirota and sought an injunction that would have prevented the conviction from taking place.

Secondly, we do think that, although one obviously has to take a careful look at the Court's decision in Hirota, we think that what the Court did say points to the conclusion that it was the international authority that was key to the Court's finding that there was no jurisdiction.

I think there's at least a couple--

Justice Souter: If it is, there's something... the implication of that I think is what is bothersome, because in effect it means, if that rule is applied to this case, it means that the president acting alone can make an agreement for an international force or a cooperative force and that agreement of the executive alone in effect eliminates habeas jurisdiction over an American citizen.

And that obviously is in tension, if not inconsistent, with the suspension clause and it's a little scary.

Mr. Garre: --Well, obviously the Court reached that conclusion in Hirota as to aliens.

With respect to citizens, I think that the key for the jurisdictional question under the habeas statute is whether or not these individuals are in custody under and by color of United States authority.

Just as the Court presumably concluded in Hirota that the petitioners in Hirota were not under custody under color of United States authority, we think that the Petitioners here are not.

And so we think--

Justice Souter: No, but in real world terms isn't it the case that they are under United States authority?

You've got an American commander, you've straight-line authority right through, and... and one knows... to be realistic, one knows perfectly well that if any order were given to the American military involved, they would not hand them over, i.e., they would obey the order, international... agreement for international cooperation or not.

Mr. Garre: --If I can make--

Justice Souter: Go ahead.

Mr. Garre: --two points in response to that.

First, ultimately the United Nations controls the strings and the source and the scope of international authority.

The... the current Security Council resolutions are set to expire in December.

It could... it could eliminate those resolutions today and that source of international authority would exist and we wouldn't be here arguing that these individuals are being held pursuant to international mandate.

Justice Ginsburg: Mr. Garre, just to clarify one point.

The... at the time of the briefing, the U.N. resolution was due to expire in December of 2007.

Has it been renewed.

Mr. Garre: There has been a subsequent resolution.

It's Resolution 1790, and that resolution is set to expire this December.

And the... the government of Iraq and the other parties have indicated that this will be the last extension.

Obviously, they'll have to assess the situation in December.

But the international authority that existed at the time of the briefing continues to exist.

The other point I was going to make, Justice Souter, is your point about American domination or influence over the Multinational Force was equally true with respect to the force in Hirota.

You had--

Justice Souter: I think... I think you're right.

Mr. Garre: --So I don't think that that's a basis for distinguishing Hirota.

The--

Justice Souter: It may be... I mean, Hirota was a literally, I think, a two or three-day per curiam opinion.

It occupied less than a page, and it had this kind of whole ball of wax sort of reasoning involved in it.

And as precedential authority, if this case turned on the question of whether we look to the theory of international authority rather than, I think, the realistic fact of American domination, I don't think Hirota is a very strong precedent against our at least taking the realistic view of it.

Mr. Garre: --Well, again, I think that Hirota... the amount of influence that the United States forces have over the international force isn't a basis for distinguishing Hirota.

But to get to your point about citizenship, I guess we would say a few things.

One, we that think the Justice Douglas in his concurring opinion in Hirota and the court of appeals below recognized that the theory of the Court's decision in Hirota doesn't lend itself to a citizenship exception.

The habeas statute, as this Court emphasized in the Rasul case, doesn't have a citizenship... doesn't distinguish between citizens and aliens, and it has since 1789 contained the requirement that the person be in custody under or by color of United States' authority.

So--

Chief Justice Roberts: So once again you're relying on a concurring opinion by Justice Douglas?

Mr. Garre: --Not the concurring opinion.

We're relying on the Court's decision in Hirota, but we look at the concurring opinion; we've looked at the briefs.

We've tried to discern the best principle of law from that decision.

And the principle that we think it stands for is that where individuals are held under international authority by the judgment of several nations, not the law of any single nation, this Court lacks jurisdiction to review the custody of such individuals.

Justice Ginsburg: Mr. Garre, it is at least equally plausible, I think, because it's the only factor that Hirota mentions more than once, that the Court was going on its lack of power

"to review, to affirm, set aside, or annul the judgments and sentences imposed. "

there.

And here we have no judgment or sentence.

So I don't think you can pick one of these strands, citizenship, and say, oh, that's it and it isn't the judgment and sentence.

So I think we know your position.

This is an opinion that says "under the foregoing circumstances".

I don't think you can take it much further than saying citizenship was one of those circumstances.

Mr. Garre: If I can make a couple of points.

One, the parties in Hirota, the habeas petitioners, made very clear that they weren't asking this Court to review the international conviction.

They made very clear that they were asking this Court to review the actions of American officers under United States law.

They made that clear on page 14 of their merits brief, where they said... and I'm quoting here...

"We are not asking this Court to review the decision of international court. "

--end quote.

And quoting again:

"All the questions deal solely with official actions taken by General MacArthur as citizen and U.S. Army officer. "

--end quote.

And again on page 15, quote:

"We repeat again that we bring into question only unlawful action taken by General MacArthur for us. "

The other point that I would make is these individuals... they haven't been convicted pursuant to a trial, like the individuals in Hirota, but these individuals are being held pursuant to determinations made by the Multinational Force carrying out the international mandate.

In Mr. Omar's case, he not only received a three-judge tribunal shortly after his detention and capture, but he also received a determination before a nine-officer combined review release board, consisting of six Iraqi officials and three Multinational Force officials, who determined that he was a security internee who should be detained in accordance with the United Nations mandate.

Now, Mr. Munaf's case did proceed before the Iraqi criminal court because an injunction was not entered against those proceedings.

The Iraqi court initially did enter a conviction.

That conviction was reversed on appeal by the court of cassation.

We think that... that the recent decision is significant in a couple of respects.

I think, one, it underscores there is an Iraqi legal system, that that system is capable of processing these cases and hearing from these individuals, and is capable of granting relief where appropriate action isn't taken.

And, two, the Iraqi court order setting aside the conviction, much like an appellate order in this country would, remanded the case for further proceedings but directed that Mr. Munaf and his codefendant--

Justice Stevens: If it's in the materials, then perhaps I should have known, but did the... I take it Munaf was present and was represented by counsel?

Mr. Garre: --Yes, both.

Justice Stevens: But how did that work?

Was he present in American custody and then he goes to the Iraqi court?

Mr. Garre: The individuals are detained by the Multinational Force while there are proceedings before the Iraqi court--

Justice Stevens: So then he just goes every day to the Iraqi court and then he comes back at night to U.S. custody?

Mr. Garre: --Yes.

In Mr. Munaf's case, there were four investigative hearings and a trial, after which he was convicted.

In Mr. Omar's case, if he were... if the proceedings were allowed to go forward, he would remain in MNFI custody during the course of the Iraqi proceedings.

And then, if there is a conviction and that conviction is sustained on appeal, the Iraqi government issues an order, a transfer order, to the Multinational Force.

The Multinational Force makes a determination to carry out that order.

Justice Ginsburg: There are--

Mr. Garre: And, again--

Justice Ginsburg: --There are in the U.S. custody a number of non-citizens.

Is that... how many people are being held in the custody of the Multinational Force that the United States controls?

Mr. Garre: --There are 24,000 people currently being held by the Multinational Force, the vast majority of whom obviously are aliens.

Two thousand individuals held by the Multinational Force have been transferred to Iraqi custody.

Many if not most of those individuals have undergone court proceedings because the Multinational Force is obviously working in close coordination with the Iraqi government to bring to justice people who have committed crimes in Iraq.

And if I could turn to the second question, because we think that there is--

Justice Breyer: One more... I'd like... on the first question, in reading through this, my impression was that the government... and the green briefs, you know, the dark green briefs against you from the Military Justice Institute and the national security specialists really don't disagree.

That is that everybody seems to agree, to use the words General Casey said, that U.S. soldiers in Iraq are subject to the authority, direction, and control of the commander of the U.S. Central Command.

And you say in your brief that really this multilateral force operates subject to a unified American command, and the chain of command ultimately runs to the President.

So as a practical matter it's the President and the Pentagon, the Secretary of Defense, and the American commanders that control what our American soldiers do.

I take it there's agreement on that point, but where there's disagreement is that you say, well, the same was true with that tribunal at issue in Hirota.

Am I right about that?

Mr. Garre: --We say the same is true with respect to the allied forces--

Justice Breyer: Yes.

So we're not... we're not... I take its you say that, as a practical matter and as a matter of the chain of command, it runs through American officers to American commanders to the Secretary of Defense to the President of the United States.

There is no disagreement about that, or is there?

Mr. Garre: --There is not, Justice Breyer.

An American--

Justice Breyer: There is not.

Mr. Garre: --official has the supreme command--

Justice Breyer: Yes.

Okay.

Then if there is not... if there is not, am I right in thinking the issue is whether, because the words... there's some connection with foreign governments, absolutely.

There's some, but it doesn't interfere with that chain of command.

And now your point is: But the same was true with the tribunal at issue in Hirota.

Mr. Garre: --The same was true with respect not only to the tribunal, but the allied forces--

Justice Breyer: Yes, yes.

Mr. Garre: --in Hirota.

Justice Breyer: The same was true.

It was General MacArthur.

Mr. Garre: That's correct.

And ultimately the key point, we think, is that those forces were acting under international mandate.

The Far Eastern Commission in Hirota ultimately had say over what the force could do--

Justice Breyer: Well--

Mr. Garre: --whereas the United Nations here ultimately has.

Justice Breyer: --But that's because the President, I take it, would follow what the UN says, not because the chain of command would change.

Mr. Garre: Well, I think that that's true, but the point I wanted to make is that the United Nations today could repeal the resolutions authorizing this international force and the specific mission.

Justice Breyer: And if that happened, these people would be released?

Mr. Garre: They would be under the authority of the United States.

We wouldn't be here arguing that this Court didn't have jurisdiction.

So, ultimately, an international body distinct from the United States is controlling the strings--

Justice Breyer: But the relevance of that is General MacArthur was an agent of several allied powers.

Mr. Garre: --As is, in our view, General Petraeus.

He is sharing now the authority--

Justice Breyer: Then, to me, it's a matter of Hirota at the moment, and the only distinction you haven't addressed is at that time, I think in 1946, the basic habeas rule was that you wouldn't question a judgment of a tribunal, at least not a foreign tribunal.

And it was just beginning in the issue... to question judgments in American tribunals.

And, therefore, the obvious question is: Well, doesn't that explain Hirota?

Mr. Garre: --I don't think it does, for the reasons that I have already indicated to Justice Ginsburg.

That wasn't the argument the parties were making in Hirota.

They went out of their way to say that they weren't challenging the international conviction, that they were challenging the actions of the American officers acting under international law.

Justice Ginsburg: But the Court certainly listed it as a circumstance; and, as I said before, it's the only thing that's repeated in the opinion.

But I think that we've come to a standoff on that.

Mr. Garre: It did.

And if I could turn now to the second issue, because we do think there is a--

Justice Stevens: May I ask just one question.

Would your argument be the same if the place of detention was in the United States?

Mr. Garre: --Analytically, it would be the same, Justice Stevens.

As a practical matter, United States forces don't act under international authority; and, thank goodness, Multinational Forces don't act in the United States.

It would make a difference as to the second question, which is to say if the individuals were detained in the United States and there was a question of transferring back to Iraq, that would be a classic extradition situation.

And we'd have a whole different body of case law governing these individuals--

Chief Justice Roberts: And I suppose if he were... it would make a huge difference whether such an individual were released in the United States as opposed to being released in Iraq.

Mr. Garre: --Absolutely.

In Iraq it's undisputed that if the Multinational Force were to release them, the Iraqi authorities could arrest them, take them into their custody.

The injunction that we face today is one preventing the Iraqi courts from going forward with any proceedings against Mr. Omar, preventing the Multinational Force from sharing information with Iraqi authorities about the circumstances of his release, and directly preventing the Multinational Force from transferring these individuals to Iraqi custody if they are convicted.

The laws of this Court... we go back to Reid versus Covert, The Schooner Exchange... makes clear that when American citizens go abroad voluntarily into other countries, commit crimes in those countries, and remain in those countries, they cannot come back to this country and complain about the offenses they committed, nor complain about the modes of trial and punishment available in those countries.

The Court made that express in the Neely versus Henkel case.

And at least on the second question, we think that that principle establishes that the U.S. force, even assuming it has habeas jurisdiction to review their detention by the MNFI, shouldn't be in a position of directly thwarting Iraq's sovereign right and jurisdiction to try these individuals and, if they find that they committed offenses, punish them for offenses committed in Iraq.

American citizens--

Chief Justice Roberts: Is there a limit to your proposition?

In other words, let's stipulate that the individuals are going to be released in a situation where you know that they won't receive anything resembling due process and will be subject to abuse.

What happens in that case?

Mr. Garre: --I think we would maintain that American citizens, when they go abroad, they have to take what they get.

I think there is some suggestion--

Justice Stevens: Well, could they be released to a lynch mob?

Mr. Garre: --What... I think what this Court said in Neely versus Henkel... and I'm quoting from page 122, and I think it partially answers your question, Justice Kennedy:

"The Suspension Clause has no relation to crimes committed without the jurisdiction of the United States and against the laws of a foreign country. "

If this Court thinks that it would be different if there were no system of fairness or process, then it could reserve that question for another case.

Justice Kennedy: But habeas corpus is concerned with the safety of the prisoner to the extent that it's controlled by our authorities.

And if you're in the United States, could an officer release a prisoner knowing that a lynch mob was outside?

I should think not.

Mr. Garre: No.

And here, Justice Kennedy, the Iraqi courts are functioning under principles that require fundamental standards and--

Justice Kennedy: Of course, this is just a hypothetical question.

Mr. Garre: --Right.

Justice Kennedy: Of course.

Mr. Garre: Right.

Chief Justice Roberts: And do you agree that... do you concede that habeas is concerned with the safety of the individual as opposed to his custody?

Mr. Garre: Habeas, as this Court has made clear, is concerned with the fact or duration of custody.

I think if we're talking about things that could happen to people that would be a different type of action.

American courts might be open in that extreme situation.

I don't think that would be an exercise that's ever been available in habeas.

I think that the closest analog of this Court's cases to this situation is perhaps Wilson versus Girard, where you had an American serviceman stationed in Japan who committed alleged offenses in Japan, and the Japanese authorities made a request that they take jurisdiction of that person to prosecute him for offenses in Japan, and this Court considered the question.

There was an injunction against the transfer of that individual to Japanese authorities.

This Court set the injunction aside because it found no affirmative bar on the exercise of that discretion, recognizing the sovereign right and jurisdiction of the Government of Japan to prosecute individuals, including American--

Justice Ginsburg: There's an important distinction, I think.

At least in this case it has been alleged that if these people are released to Iraqi custody, there is a high risk that they will be subject to torture and other abuse.

You know the brief that was filed on behalf of the NGOs where there is a quotation from Iraq's deputy justice minister:

"We cannot control the prisons. "

"It's as simple as that. "

"Our jails are infiltrated by the militias from top to bottom, from Gaza to Baghdad. "

Mr. Garre: --Let me make a practical and a legal point on that, Justice Ginsburg.

First, as a practical matter, it is important to keep in mind that reports of torture and abuses in the Iraqi system all deal with the Ministry of the Interior and the Ministry of Defense.

We point that out--

Justice Ginsburg: This is a quotation from the deputy justice minister.

Mr. Garre: --And I don't believe he was pointing to any reports of systematic abuses within the department, the Ministry of Justice.

And that's what our... our own State Department concluded in its most recent reports on this.

And if you look at all the reports, including the most recent report that came out a couple weeks ago from the United Nations Assistance Mission in Iraq, they point to alleged abuses within the Ministry of Interior and Defense.

These individuals would be going to the justice system.

We don't have reports of systematic--

Justice Souter: Doesn't that... doesn't that issue that you raise at least deserve litigation before the court?

Mr. Garre: --No, and that was the legal point that I was going to make.

Even in the extradition context, where everyone agrees that there would be habeas jurisdiction to review a transfer for some reason, the courts have not entertained allegations of torture, recognizing that those considerations are uniquely for the executive, except when--

Justice Souter: Why shouldn't they?

I mean, if a... if a court may consider the imminence of lynch-mob action either sanctioned by the requesting government or tolerated by it, why cannot the same point be made about a claim of torture if there is at least enough color in the claim to say there's something to inquire into?

Mr. Garre: --I think because for centuries, Justice Souter, the courts have recognized that these are matters for the executive to assess, because--

Justice Souter: Then why don't you have... why isn't your answer different in the lynch-mob case?

Mr. Garre: --Well, I think there we weren't talking about habeas.

I think if... and my answer was if the Court is concerned about that situation, this isn't it.

It can reserve it for a different case.

Justice Scalia: A lynch mob doesn't require investigation by American courts of the internal workings of a foreign government.

Mr. Garre: Well, that's true, Justice Scalia.

Justice Scalia: No, but I think it would be quite extraordinary to investigate the Government of Iraq.

That's a matter that the executive can take into account.

Mr. Garre: That's--

Justice Scalia: But It would be a strange thing for an American court to do.

Mr. Garre: --That's what the district court, the court of appeals, and maybe this Court would have to do if it were going to entertain allegations of--

Justice Alito: In answer to a previous question, I understood you to say that if the individuals here were tried by an Iraqi tribunal they would remain in the custody of the Multinational Force during the course of the trial.

Is that correct?

Does that mean that they would simply be transported to court and then brought back to the custody where they are at the present time during the course of those proceedings?

Mr. Garre: --That's right, and General Garner explained that on page 48 of the appendix.

The other thing I want to make on torture--

Justice Alito: Well, just to follow up on that, at what point during that, during the trial, would there be any potential for torture by Iraqi authorities.

Mr. Garre: --There would be none, Justice Alito.

And these individuals are represented by Iraqi counsel, by American counsel.

They have access to Iraqi ombudsmen.

They can make reports.

They can make reports, as some detainees have, to the Iraqi investigative judges of alleged mistreatment; not torture, but Iraqi investigative judges have directed that mistreatment not occur.

Justice Souter: Sure, but once they're turned over to the prison authorities they're in the situation that the NGO brief describes.

I mean, that's it seems to me ultimately what the concern is.

Mr. Garre: It's not the situation that the NGO brief described, because all of those reports are focused on Ministry of Interior and Defense, where these individuals are not going to... U.S. court, even in the extradition context, don't review these allegations--

Justice Souter: Well, I guess that just gets me back to my earlier question.

Isn't that something that ought to be explored as an evidentiary matter in determining whether there should be a permanent injunction?

Mr. Garre: --I don't think so.

Respect for the prerogative of the executive in making its determinations, respect for the sovereignty of the Iraqi courts.

You have a habeas court having discovery and who knows what types of proceedings as to what is going on in Iraqi's criminal justice system.

I think this Court would give respect to the justice systems of other sovereign nations.

This is a system which, as we say in our brief, is founded on principles of fairness.

If I could reserve the balance of my time.

Argument of Joseph Margulies

Chief Justice Roberts: Thank you, Mr. Garre.

Mr. Margulies?

Mr. Margulies: Mr. Chief Justice, and may it please the Court: To resolve any confusion about the habeas Petitioners' claims, I'd like to focus on two points this morning.

The first is we believe the jurisdictional question is governed by the following rule: When a United States citizen is detained abroad by United States military officials who have effective authority and control over his continued detention, as Mr. Garre concedes is the case today, the United States district court has jurisdiction over that citizen's habeas petition.

Chief Justice Roberts: Did General MacArthur have effective jurisdiction and control in Japan?

Mr. Margulies: Frankly, Your Honor, the record in that regard is unclear.

As we point out in our, brief, Solicitor General Pearlman argued precisely the opposite.

But let us concede for the moment that he would, that Justice Douglas had the better of that position, which the Court in Hirota did not resolve.

Our position, Your Honor, is that it is irrelevant to this question, because the problems that doomed the habeas applications in Hirota had nothing to do with MacArthur's status in the chain of command.

The problems with Hirota were these: Nothing in General MacArthur's status as an American officer would have transformed those petitioners from enemy aliens to American citizens.

Nothing in General MacArthur's status would have transformed their complaint as something other than an attack on the judgment and sentences of an international tribunal imposed upon them.

That, in fact, is exactly what the Court said in its nine sentences in Hirota, that it was an attack on the judgment and sentences imposed upon them by an international tribunal.

And lastly, vis a vis the narrow question before the Court in Hirota, nothing in General MacArthur's status would have made this anything other than an improper attempt to invoke the original and appellate jurisdiction of this Court.

Justice Stevens: Does your case... does your case depend entirely on the fact that these are American citizens?

Mr. Margulies: It is a sufficient ground, Your Honor, but it does not--

Justice Stevens: If they were not American citizens, would there be jurisdiction?

Mr. Margulies: --We believe there would be jurisdiction, Your Honor, but no basis to proceed--

Justice Stevens: So then citizenship is irrelevant on the jurisdictional issue?

Mr. Margulies: --Only vis a vis jurisdiction, Your Honor, but I would stress we disagree very vigorously with Mister... with the government that if jurisdiction were to extend here to foreign nationals, a position on which we take no issue... that it would be--

Justice Stevens: I don't know how you can avoid taking that question.

That what bothers me.

How can you avoid addressing that question?

Mr. Margulies: --Frankly, Your Honor, we are inclined to agree with Justice Scalia's position in... my interpretation of the habeas statute accords with Justice Scalia's view of the interpretation of the statute giving a right to citizens--

Justice Stevens: Are you aware of any cases in which we have held that habeas jurisdiction is available to a citizen where it would be not available to a non-citizen?

Mr. Margulies: --No, Your Honor.

And as I say, what we know from... certainly with made explicit in Eisentrager, where the Court described citizenship as a head of jurisdiction and then reaffirmed for people detained abroad, some detained pursuant to international authority, like Toth v. Quarles, Burns v. Wilson, Wilson v. Girard, Ex parte Hayes, Gualiardo--

Justice Stevens: May I ask this second question: Do you think the place of detention has any relevance to the issue?

Mr. Margulies: --No, Your Honor.

And one of the worrisome positions--

Justice Stevens: Do you think whether or not it's a... there are ongoing hostilities would have any relationship to the issue?

Mr. Margulies: --We think that that question is answered in Hamdi, Your Honor.

We do not challenge the zone of military discretion that exists at the moment of capture.

Justice Stevens: But you say that does not exist in Iraq today?

Mr. Margulies: Oh, no, we do accept that it exists in Iraq today, Your Honor.

And we are not challenging... Your Honor, in this case we did not file the habeas petition until Mr. Omar had been in custody for... in United States custody, for more than a year.

We did not file in Munaf until Mr. Munaf had been in United States custody for more than a year.

Justice Stevens: But the place of detention has always been Iraq?

Mr. Margulies: I'm sorry, Your Honor?

Justice Stevens: The place of detention has always been Iraq?

Mr. Margulies: Yes, Your Honor.

The United States has made the decision to retain these people... they have moved them around within Iraq, but they have made the decision to keep them in Iraq.

Justice Stevens: Would the legal issue be the same if there were violent ongoing hostilities in Iraq?

Mr. Margulies: Your Honor, we accept that there are violent ongoing hostilities in Iraq, but the United States government takes the position that the Geneva Conventions, with which they are complying here... in this case the conflict is governed by Geneva Convention 4... obligates the United States to move prisoners to a safe location, and they have done that by taking these prisoners to Camp Cropper.

I have been to Camp Cropper and I agree with the United States that they are complying with the Geneva Conventions in that regard.

And upon moving the Petitioners to Camp Cropper, at that moment the case becomes functionally litigable just as Hamdi would have been.

That is, the government will assemble its proof to defend the detentions and present it in a district court.

The only difference is that Mr. Munaf and Mr. Omar won't appear personally.

Justice Kennedy: But I really wanted to get your answer to Justice Stevens's first question straight.

You think citizenship is not relevant?

Mr. Margulies: Oh, no, Your Honor, I think it's extraordinarily relevant, and I think that we are entitled--

Justice Kennedy: But I thought you were not basing your case on the citizenship?

Mr. Margulies: --No, Your Honor.

I apologize if I misspoke.

We are basing it on citizenship--

Justice Kennedy: I might have--

Mr. Margulies: --but it is only one of the grounds upon which we would distinguish this case from Hirota.

Justice Ginsburg: Let me ask you about that, because if your basic point is that here is an officer of the United States that has someone in custody--

Mr. Margulies: Yes.

Justice Ginsburg: --someone who is in jeopardy, among other things, of being tortured--

Mr. Margulies: Yes.

Justice Ginsburg: --that United States official has to safeguard a citizen?

Mr. Margulies: Yes.

Justice Ginsburg: But can throw a non-citizen into the lion's den?

Is that the instruction that the United States gives to its officers, take care of our citizens, but the rest of the world, we don't care?

Mr. Margulies: Frankly, Your Honor, I do not believe the United States makes that instruction to its uniformed officers.

Justice Ginsburg: But you're making this distinction now.

Justice Kennedy asked you does... does your case turn on citizenship, and you said citizenship is very important.

Mr. Margulies: Yes.

Justice Ginsburg: There are thousands of noncitizens that are being held in the very same circumstance.

Mr. Margulies: Your Honor, there are important reasons embedded in the laws of war that authorize the United States in this context to transfer foreign nationals back... in this case the overwhelming number of which are Iraqis... back to the custody of the Iraqi government, that the laws of war do not allow for... with U.S. citizens.

That is a distinction.

Justice Scalia: Mr. Margulies, the prologue to the Constitution does say

"to preserve the blessings of liberty to ourselves and our posterity. "

There is something to the notion, isn't there, that the Constitution provides constitutional rights, including the right to the writ of habeas corpus, to Americans or to anyone who is in America; but to say that the whole world has rights under the Constitution is extravagant.

Mr. Margulies: I take no position on whether it's extravagant, Your Honor, but I certainly take the position that that's not what we argue.

And there are grounds... there are grounds predicated on the laws of war, on the terms of the extradition treaty, on the possible application of the Fifth Amendment, that simply make differentiation between citizens and non-citizens.

Rebuttal of Gregory G. Garre

Chief Justice Roberts: So a habeas court here has to look at all those different factors and come to a determination of whether it has jurisdiction?

There's no bright line?

It has to look at whether hostilities have ceased or haven't ceased?

It's got to look at how far the prisoners have been removed from the zone of hostility?

Mr. Garre: No.

No, emphatically not, Your Honor.

Rebuttal of Joseph Margulies

Chief Justice Roberts: So what is the bright line that determines whether there's habeas jurisdiction or not?

Mr. Margulies: Control.

That is what habeas turns on, Your Honor.

And the bright-line test that we propose, which is the one that has been followed by this Court--

Chief Justice Roberts: So the control in the middle of a zone of hostilities of a foreign national allows... creates habeas jurisdiction?

That's your bright line?

Mr. Margulies: --No, I'm sorry, Your Honor.

What I mean to suggest, the rule that I propose... the rule that I propose is that when a U.S. citizen is detained abroad by U.S. military officials who have effective authority and control over his continued detention, that citizen can invoke the jurisdiction of the United States district court.

Chief Justice Roberts: Well, then it's not just control.

It looks to citizenship, which brings up the questions Justice Stevens was raising.

Mr. Margulies: Yes, Your Honor, and I apologize.

What I said at the outset is that this is a test which turns on the jurisdictional facts that I have identified, which is when a citizen is detained by the U.S. military abroad and the military has effective control.

Justice Stevens: Do we have any... any precedent in our cases for saying that that test would apply during an active combat in a zone of hostilities?

Mr. Margulies: Toth v. Quarles, of course, Your Honor, involved a person who was brought from the United States to Korea when there was still hostilities ongoing.

But Your Honor, again I would suggest that what the Court will have to inquire into has been addressed already by Hamdi, because we will not look at the period of time--

Justice Stevens: It's a very different place of detention.

Mr. Margulies: --Oh, absolutely, Your Honor.

But we are not focusing on the moment of capture.

The United States already has--

Justice Alito: I still don't... I don't understand what you're saying about citizenship.

You said earlier it wasn't necessary, and it make as big difference.

There are thousands of U.S. citizens being held in Iraq.

Your argument with respect to your clients is that they have... they can file habeas petitions in the District of Columbia and they can't be turned over except pursuant to the extradition treaty between the United States and Iraq; is that correct?

Mr. Margulies: --Not quite, Your Honor.

Our position is... and I want to come back--

Justice Alito: If I could just then finish the question.

Pursuant to the extradition treaty or some other authorization; if citizenship isn't important, then why can't all of those thousands of non-citizens... or can all of those thousands of non-citizens... who are being held in Iraq file habeas petitions in the District of Columbia and argue that they can't be turned over except pursuant to the extradition treaty or some other authorization?

Mr. Margulies: --For several reasons, Your Honor.

First of all, as the Court knows, the habeas statute itself has been amended in a way that excludes access for foreign nationals outside the country.

The Court... or rather Congress, very carefully did not exclude it for U.S. citizens.

Second, there may be limitations on whether foreign nationals can invoke the protections of the Fifth Amendment.

Third, as I pointed out, the extradition treaty bars the transfer of citizens, but does not bar the transfer of non-citizens.

And fourth, the laws of war allow the United States to transfer Iraqis, but contemplate the continued application of extradition principles that were in place prior to the start of the conflict.

So there are four brakes, if you will, on the slippery slope.

There is no floodgates problem in this case.

So far as we are aware--

Justice Breyer: But you have only the... the citizenship to stop the floodgate.

What I'm wondering is... when I read the briefs, I put in my mind a spectrum and on one side is the military occupation of Japan, where there is basically peace but it's a military occupation.

On the other side, it's a hot war or a guerilla war where the U.S. forces are rounding up troops, nightly perhaps, and rounding up guerillas.

And I had put this case quite close to the military occupation in my mind because of the nature of these particular individuals' offense and treatment.

But was I wrong to do that?

Should I assimilate this case to either a hot war or at least a guerilla warfare, where troops are actively engaged in rounding up those who want to shoot them?

Mr. Margulies: --You should definitely not assimilate this case to the latter category, Your Honor.

That is not what this case is about.

And let me turn then--

Justice Souter: In answering that question, would you go back, please, and clarify something that I'm not too clear on in your answers to comparable questions from Justice Kennedy and Justice Stevens?

And that is, you say we do not claim that there would be jurisdiction within the zone of hostilities.

Is it your point... and you then go on to say, well, they've been moved to this camp.

Is your point the simple point that the camp gets them out of the zone of hostilities?

And is that the reason that you answered Justice Breyer's question by saying this is comparable to an occupation rather than a war zone?

Is that the simple point?

Mr. Margulies: --No, Your Honor.

What I am... what I am seizing upon is the conclusion in Hamdi that there is a zone of military discretion within which the judiciary ought not intrude.

And that has both spatial and temporal qualities.

This is a person who has been moved from that place, and the detention has been made, a decision has been made to continue detention long after--

Justice Souter: So you're saying within what is technically a zone of hostility, there are places, physical places, I take it, within which the military has a degree of discretion; and that discretion is what makes this situation comparable to an occupation?

I mean, I'm just not following how you're getting from A to B.

That's... that's my problem.

Mr. Margulies: --Your Honor, what we are suggesting is that we recognize that there are hostilities going on inside Iraq.

But the United States has made a decision to move the person, as required by the Geneva Conventions, to a safe location.

Justice Stevens: So are you saying then that the zone of hostilities does not include all of Iraq?

Mr. Margulies: Absolutely.

That is--

Justice Stevens: So what if we thought otherwise?

Mr. Margulies: --I'm sorry, Your Honor?

Justice Stevens: What if we thought otherwise?

What if we thought all... all of Iraq is a zone of hostilities?

Would we have a different result?

Mr. Margulies: We would not, Your Honor.

We would not have a different result either jurisdictionally or on the merits.

If the United States Government has custody and control of a United States citizen, there is habeas jurisdiction.

Justice Souter: Then you've got to say that there is habeas jurisdiction within the zone of hostility.

I thought you said the opposite.

Mr. Margulies: No, Your Honor.

I do say... our position is that the habeas statute would give jurisdiction, but there may be a period in which it would be inappropriate, unwise, just as in Hamdi, for the Court to intrude.

And that may be--

Justice Souter: An abstention kind of doctrine then is what you are getting at?

Mr. Margulies: --Yes.

It is abstention upon--

Chief Justice Roberts: So that's pretty far removed from the bright line.

I mean, now you've got to decide whether it's in the zone of hostilities or not.

You've got to decide if this is within the time period that the Court should not exercise jurisdiction or not.

And what's going to happen, of course, is that the district court is going to look at this and say, I can't decide all of that right away.

Let's enter an injunction, a preliminary injunction such as at issue here, while I decide these questions.

And that's going to have the effect of intruding quite extensively on the exercise of executive authority.

Mr. Margulies: --I... we think not, Your Honor.

First of all, it does not alter in the slightest the jurisdictional rule.

The jurisdictional rule given to us by the habeas statute is still a bright-line rule.

There may be some cases where the petitioner is asking to... the Court to inquire into the lawfulness of... the two inquiries in this case, the... both of them governed by the Due Process Clause... the lawfulness of the detention for security threats, and the lawfulness of the proposed transfer.

Those are two different inquiries.

Those are the two inquiries.

There may be some instance where that request is made fairly shortly after the decision was made to continue to detain.

Justice Scalia: Mr. Margulies, could I ask a few questions about the Multinational Force involved here?

Do you acknowledge that in theory, at least, the United States in its capacity here is subject to the control of the United Nations?

Mr. Margulies: No.

Justice Scalia: You do not?

Mr. Margulies: We do not.

It is emphatically not the case.

The resolutions which bring the Multinational Force into existence say that it will operate under the unified command of the United States military, which is precisely the position that the government pressed in its brief, on page 2 of its brief.

General Casey when he testified said that the MNF is a subordinate command to the United States military.

There is nothing in the record which suggests that the MNF could, if it wanted to, give an order that the United States could not countermand.

There is nothing that gives this anything other than... and we do not... we do not denigrate or diminish the significance of any other country's participation.

But the buck stops with the United States Government when it comes to these detentions.

Chief Justice Roberts: Let me try and move you to the merits.

Mr. Margulies: Please.

Chief Justice Roberts: I had thought that the historic purpose of the Great Writ was to challenge custody.

And it seems to me that the last thing your clients want in this case is to be released.

Mr. Margulies: That is incorrect, Your Honor, and let me make it clear.

There is some question that emerged in the earlier argument on the potential equivalence between release and transfer.

So let me address that directly.

With respect to transfer... again that's a separate question from detention simpliciter... with respect to transfer, there are two questions: The transfer will either be lawful or it will not; Iraq will either want him or it will not.

That obviously produces four different possible outcomes, a matrix with four boxes.

It is too early to ascertain which of those boxes we will be in, but let me give an illustration.

Justice Ginsburg: Well, but in the cases--

Chief Justice Roberts: You don't want the district court to say you win, you can be released tomorrow at noon.

Mr. Margulies: Yes, we do.

In fact, Your Honor--

Chief Justice Roberts: Well, I thought you wanted to block the transfer.

I mean, the Iraqi authorities can pick him up at the gate.

Mr. Margulies: --Your Honor, let's say we had... my understanding of the evidence in Munaf leads me to believe that on remand this is where we... this is where the state of play will go: The transfer will be unlawful, and the Iraqi government will not want him.

Transfer unlawful.

Iraqi government won't want him.

He can be released to his home--

Justice Ginsburg: --But he... he is still within the Iraqi criminal justice system.

He wasn't... his case wasn't dismissed.

It was sent back for further investigation.

Mr. Margulies: --Correct.

Justice Ginsburg: So what's happening in his case is he's undergoing a criminal process in Iraq; and we are holding him during that process.

So if you're not objecting to our holding him while the process is going on, what is... what is he seeking through habeas?

He... he can't get out from under the Iraqi criminal justice system.

He is alleged to have committed crimes within Iraq.

We are holding him safe while that process is going on.

So what is the basis of his petition?

Mr. Margulies: Your Honor, his petition, like Mr. Omar's petition, seeks his release.

The only complexity arises in one of the possible boxes; that is, the Court concludes that the transfer is unlawful, but there is no... but the Iraqi government wants him.

The transfer is unlawful, but the Iraqi government wants him.

In that situation, in order to give effect to the legal conclusion that the transfer is unlawful--

Justice Ginsburg: I don't get up to transfer.

This man is now under investigation in the Iraqi system.

Mr. Margulies: --Yes.

Justice Ginsburg: Now, we... transfer isn't an issue.

What do you want done with him while he's subject to the criminal process in Iraq?

Mr. Margulies: Your Honor, you are correct that we do not object to the idea that, while the district court is determining whether it is lawful to detain a U.S. citizen in this circumstances or transfer a U.S. citizen in those circumstances... those two inquiries... it is okay to detain Mr. Munaf for the benefit of the Iraqi government.

Chief Justice Roberts: I thought the relief that was awarded by the district court also enjoined prosecution.

Mr. Margulies: It does not, Your Honor, and to the extent that the D.C. Circuit in Omar interprets that, we do not... we disavow that.

There... as the court pointed out, the... first of all, they can try a prisoner in absentia.

All we object to is that... a physical transfer of Mr. Omar or Mr. Munaf, while the lawfulness of that transfer is being determined.

And that is all we sought.

Justice Breyer: The question is, look, suppose the government comes in tomorrow, or in the district court, you're back there.

And the government says you want us to release him.

At noon tomorrow, we will take him to the front gate and release him.

Do you want us to do it?

Yes or no?

Mr. Margulies: Yes.

Justice Breyer: Yes?

Mr. Margulies: Yes.

Justice Breyer: Okay.

Chief Justice Roberts: You want... I'm sorry.

I just want to make sure I understand.

You want the relief in both of these cases to be, okay, we will release him tomorrow at noon?

And by the way, we're going to notify the Iraqi authorities because we think we're releasing a dangerous criminal and want to make sure they have the opportunity to do whatever they want?

Mr. Margulies: There is... there is no question that we do not challenge any right of sovereignance in Iraq to share information.

The only circumstance in which it potentially arises is one in which release has the effect of being transfer and there is a prior determination by a United States district court that the transfer would be unlawful.

So that--

Justice Kennedy: --Well, why didn't you answer Justice Breyer... and we've interrupted you a couple of times.

You have the box.

He's going to be released.

They want him.

I don't see then why you didn't answer Justice Breyer's question differently.

Mr. Margulies: --Because what I understood the hypothetical to mean is that there had not been a prior determination that the transfer would be unlawful.

In other words, if they just released him tomorrow... they said, we have lost interest in him; we're releasing him tomorrow... there is no prior determination that the transfer is unlawful.

Justice Kennedy: Well, what we're doing--

Mr. Margulies: So you're not--

Justice Kennedy: --What we're doing is we're testing the authority and the propriety of the district judge to proceed.

Mr. Margulies: --Yes.

Justice Kennedy: And that's why we are asking if, at the end of the day, the order is a release, is there a problem?

And I should think you'd yes.

Mr. Margulies: No.

Your Honor, if the conclusion is that the transfer would be unlawful, then you cannot release him in a way that effects the transfer.

Justice Scalia: Who says?

I mean, a transfer is one thing and saying you're free to go and the Iraqi government picks him up is something else.

Why... why do you equate the two?

Mr. Margulies: Because, Your Honor, we think that the district court can order, under 28 U.S.C. 2243, as law and justice requires, a release... or rather, relief that gives effect to the contours of the right.

Justice Scalia: But... of course it can.

Mr. Margulies: Yes.

Justice Scalia: It can, but--

Justice Souter: What--

Justice Kennedy: It seems to me that you're begging... you're begging a question... you're inserting a premise that we have to decide, whether the release is unlawful.

We're asking, that's part of the equation.

I'm the district judge.

Can I say, I've looked at all this, I want this prisoner released tomorrow morning; and if the Iraqis pick him up, fine with me?

Can I say that?

Mr. Margulies: Yes, you can.

But if there is a determination that the transfer would be unlawful, then you need to release the person in a manner... for instance, Your Honor--

Justice Souter: --All right.

Let's get to that.

What manner?

Tell me exactly what should such an order would look like.

Mr. Margulies: --It... we would ask the district court to order precisely what the military already does, which is to remove a person to a safe place.

When United States citizens are released from Camp Cropper, they are brought from--

Justice Souter: So Releasing at place A, not place B.

Mr. Margulies: --That's correct.

Justice Souter: Don't push him out the gates; take him somewhere else, and then release him.

That's the order?

Mr. Margulies: Yes.

Justice Souter: Okay.

Chief Justice Roberts: And don't tell--

Mr. Margulies: That's the--

Chief Justice Roberts: --And don't tell the Iraqis where that's going to be?

Mr. Margulies: --They don't do that now, Your Honor.

When... when United States citizens are released from Iraq, what they do is they put them in a car out of Camp Cropper, the same thing when I left Camp Cropper.

They put them in a car from Camp Cropper.

They drive them to the American--

Chief Justice Roberts: Well, that's within the executive's discretion.

I want to know if you are saying that the district court in this case can require the custodian not simply to release the person, but to release them somewhere else and to keep the point at which they're going to release someone whose been determined by the MNFI tribunal to be a dangerous criminal, to keep the point of his release secret from the Iraqi government.

Mr. Margulies: --If the determination has already been made that the transfer would be unlawful, yes, we think that in law and equity they can do that.

Chief Justice Roberts: Okay.

Now the determination that the transfer would be unlawful, I... again, I get back... maybe I'm repeating myself.

I have always understood habeas to be concerned with custody, rather than this broad range of determinations about what's lawful and unlawful, other than as are necessary to rule on the question of custody.

In other words, of course, if there's been a Fourth Amendment violation, you bring a habeas action, you determine whether the custody is lawful or not.

Here you want a determination whether the transfer is unlawful or not.

Mr. Margulies: Yes.

Because the United States Government simply lacks the power under the Due Process Clause to surrender a citizen to the custody of another sovereign.

That... it just lacks that power.

Chief Justice Roberts: Whether it does or does not, I just question whether habeas is an appropriate remedy in that situation, again because it's not concerned with the legality of transfer; it's concerned with the legality of custody.

Mr. Margulies: Habeas has long been used to test the lawfulness, under the Fifth Amendment, of a proposed transfer.

Justice Stevens: How can you say that the United States lacks the power to transfer?

Suppose this fellow had been arrested in the street by a sergeant in the Army and he says, what will I do with him?

I'll take him to the Iraqis and turn him over.

Would that be an illegal transfer?

Mr. Margulies: It... once the United States has the authority to--

Justice Stevens: A sergeant caught this guy, and he wants to turn him over to the Iraqis.

Does he... is there some law that prevents him from doing that?

Mr. Margulies: --It may be the Constitution and the habeas statute could combine to prevent that.

Justice Stevens: That applies to the sergeant in the city of--

Mr. Margulies: As I said before, Your Honor... as I tried to say, and I apologize if I'm not being clear... there is a zone of military discretion where it may not be appropriate--

Justice Stevens: --Why isn't all of this within the zone of military discretion?

Mr. Margulies: --Because we filed this application more than a year after the United States made a decision to continue the detention.

Think about it this way, Your Honor: If Hamdi... exact same facts... had simply been kept in Afghanistan, instead of brought to Charleston, South Carolina, we think there still would have habeas jurisdiction.

The court would have undertaken the exact same inquiry.

Chief Justice Roberts: So if you had filed it... if you had filed it six months rather than a year after, would there be habeas jurisdiction.

Mr. Margulies: We think in six months, yes.

Chief Justice Roberts: You see where I'm going.

Three months?

Mr. Margulies: There may be some cases that become difficult, Your Honor.

In this case, for instance--

Chief Justice Roberts: The bright line is getting awfully fuzzy, as far as I'm concerned.

Mr. Margulies: --Your Honor, in this case... in both cases, after two months they made the determination to continue to hold them in the MNFI tribunals.

So at the very least, at that point we're covered.

Justice Kennedy: But it seems to me your statement is wildly overbroad: That there is a due-process restriction on release by the United States Government to another sovereign?

Mr. Margulies: Yes.

Justice Kennedy: If we have an undercover agent in Japan who finds a drug dealer, he gives him to the Japanese police.

Mr. Margulies: Your Honor--

Justice Kennedy: I don't understand that.

That's a sweeping statement.

That just can't be right.

Mr. Margulies: --Your Honor, with all due respect, it has been the law for over a century in this country.

It ordinarily arises in the classic extradition context.

But even when a person is already overseas and the United States wants to transfer them to the custody of another sovereign--

Justice Stevens: You're talking about a transfer in what I assume you said was a zone of hostilities.

Mr. Margulies: --I'm sorry, Your Honor?

Justice Stevens: I thought you were talking about a transfer in an area that you say was engaged in active hostilities.

Mr. Margulies: Your Honor, we--

Justice Stevens: Does that affect the decision at all?

Mr. Margulies: --It does not affect a citizen's due-process entitlement.

In the metes and bounds, the way we would analyze it under Matthews versus Aldridge, it may affect what inquiry the government has to make in order to justify it.

But it does not affect the citizen's right, the citizen's constitutional entitlement, to challenge the lawfulness of a transfer at the hands of his government to another sovereign.

Justice Kennedy: But you've just said that it's unlawful.

You said that an American law enforcement officer working in another country who takes custody of a wanted criminal cannot turn him over to the government of that country.

That's just got to be wrong.

Mr. Margulies: Your Honor, just to finish the answer, the transfer may take place, but it may only take place as authorized by law.

That is, they have to show a legal and factual basis.

The legal basis is they have to show a treaty or a statutory authority; and the factual basis is they have to show that the person comes within it.

So, of course, they can pass a person.

Those... those transfers take place all the time, but it must take place consistent with the requirements of the law.

Thank you.

Chief Justice Roberts: Mr. Margulies, let me make sure there are no other questions.

Justice Breyer: You need all that to win this case.

That is, as I started the case I thought this involved an American being held by the military for over a year pending the resolution of criminal charges in Iraq, which are charges of kidnapping in respect to which whatever hot war is going on over there has very little to do with his being held.

Mr. Margulies: Correct.

Justice Breyer: Well, you've been arguing for all sorts of things that seem far broader than that.

So I'd like to focus you for a second on that matter.

Mr. Margulies: Your Honor, we... all of these other matters we do not need in order to prevail.

The district court, examining two claims under the due-process clause, will examine whether there is legal authority to detain a person, to detain these prisoners as security internees or security threats.

That is a classic Hamdi inquiry.

And they will examine under the due-process clause whether it is lawful to transfer them.

Justice Scalia: --Well, why do you say it has nothing to do with the war, then?

They are holding them as security detainees.

Aren't they... aren't they worried that if they just let them go, they'll go right back to killing Americans and Iraqis?

Mr. Margulies: Your Honor, this is what came up in Hamdi.

In Hamdi, you had a conflict, boots on the ground.

They captured a United States citizen in a battlefield situation.

And this Court made a decision, made a determination, that that person can challenge the lawfulness of his... of his detention.

Justice Scalia: I'm not arguing that.

I'm just questioning your statement that it's irrelevant that this is occurring in a war zone.

It is not at all irrelevant.

One of the... the reason they're being detained is precisely because this is a war zone.

Mr. Margulies: Your Honor, we think that point is answered by the suggestion in Hamdi that you don't want to create a perverse incentive to keep people there.

They have made a decision to keep them there.

The inquiry that the district court will undertake is the same in Hamdi as in this case.

There is nothing that... there is nothing about that inquiry that is altered by the United States' determination to move them to a safe--

Justice Ginsburg: One distinct difference in Munaf's case: He is undergoing a criminal process in Iraq, and Omar has also... it is alleged that he has committed offenses in Iraq.

Has no prosecution, no investigation been started with respect to Omar?

Mr. Margulies: --That is correct, Your Honor.

What the district court did in its preliminary injunction, the Rosetta Stone of the preliminary injunction appears on page 143 of the joint appendix.

And there you have an e-mail from the United States Government, from opposing counsel to us, indicating to us on February 2, 2006, that a decision had been made to refer Mr. Omar to proceedings in the CCCI, but telling us in the second-to-the-last sentence of that page that we would not receive notice of when that referral took place.

And it pointedly... they did not say that Mr. Omar would remain in U.S. custody once the referral took place.

Chief Justice Roberts: Thank you, Mr. Margulies.

Mr. Margulies: Thank you, Your Honor.

Rebuttal of Gregory G. Garre

Chief Justice Roberts: Mr. Garre, seven 9 minutes.

Justice Souter: Mr. Garre, would you address this question at some point?

Assuming... assume an officer in the national government arrests somebody unlawfully in Portland, Oregon, and transfers the person across the country to Portland, Maine.

The person files for habeas in the district court in Maine, and the district court says: Yes, you are right.

You are being held unlawfully.

Does the court have the authority to tell the United States to take him back to Portland, Oregon, and then release him?

Mr. Garre: I think this court confronted a similar situation in the Padilla case a couple of years ago.

And what it... it... there was a habeas petition filed in New York, and it... the court held that that habeas petition was improperly filed and a different petition should be filed in South Carolina.

And it didn't get into the question of the transfer.

And we certainly... we don't think that transfer--

Justice Souter: Do you have a position on the answer to my question?

Mr. Garre: --Whether the habeas court could direct that he be brought back to Portland?

Justice Souter: Yes.

Mr. Garre: I think the habeas court would--

Justice Souter: The habeas court says, look, it is not complete relief just to put him out on the street in Portland... in Maine.

He's broke, and he's 3,000 miles from home.

Take him back to Portland, Oregon.

Does the habeas court have the authority to do that?

Mr. Garre: --I would say probably not, Justice Souter.

I mean there are transfers all the time where habeas petitions are filed, and people are going from State authority to Federal authority.

And the rule is that those transfers, of course, can take place.

The habeas proceedings can continue.

The habeas has traditionally been used to block transfers.

Here... and I think it is important to focus on the injunction that the court of appeals sustained.

It is an injunction against allowing the Iraqi prosecutions to proceed because the court enjoined American officials from presenting Mr. Omar to the Iraqi courts.

Now, Mr. Margulies said that they didn't enjoin--

Justice Ginsburg: I didn't see that in the injunction, itself.

It just... the injunction was very spare.

Mr. Garre: --What the injunction says... and it is on page 59a... is that it bars... of the petition appendix in the Omar petition, the gray petition, and I am quoting now:

"Shall not remove the Petitioner from the United States or MNFI custody, or take any other action inconsistent with this court's memorandum opinion. "

"Any other action inconsistent with this court's memorandum opinion. "

is allowing the prosecution to proceed, and the Court of Appeals makes this express on page 25a of the petition appendix where the Court of Appeals majority says, quote,

"we agree with the dissent that the injunction prohibits the military from presenting Omar to the CCCI for trial. "

Now, Mr. Margulies said that the proceedings can go forward just without his client's presence, but that--

Justice Ginsburg: If one could go agree... let's say one could agree that was overbroad.

Does that mean that the whole injunction falls?

Let's say, take two pieces out of it: No information sharing; that's beyond the pale.

And you can't make an order that a foreign court shouldn't hear a case.

Take those two out.

Mr. Garre: --That would be a vast improvement over the injunction that was held by the court of appeals.

Justice Ginsburg: But how about the rest of it?

Mr. Garre: And then you are dealt... you are left with the transfer, the injunction on the transfer to the Iraqi authorities in the event that Mr. Omar is convicted.

And on that, I confess to being not... not being entirely clear as to what my friend's position is.

He says that we can release him because, of course, that is the office of the Writ of Habeas Corpus.

But then he goes on to say: But we can't release him in a way that would affect a transfer.

I'm not sure what that means because I thought he also said that we--

Justice Souter: Well, I think it means the same thing that the point of my question was.

He is saying you can't release him at point A, which would be tantamount to transfer; you've got to take him to point B, somewhere where his release will not result in the automatic arrest.

And that's why I asked my question.

Mr. Garre: --Just to underscore the affront to the Iraqi sovereignty on this, his clients acknowledge that they can be arrested by Iraqi officials for crimes they allegedly committed in Iraq if they were released.

But the injunction that they're asking this Court to sustain is an injunction that prevents the Multi-National Force in Iraq from telling Iraqi authorities: We are going to release these Petitioners at 12:00 o'clock tomorrow.

In effect, they're asking for an eight-hour head start so that these individuals whom the Multi-National Force has determined pose threats to the security of Iraq, who Iraq has determined pose threats to the security of Iraq, that an American court is enjoining the Multi-National Force from conveying that information to the Iraqi authorities so that these individuals who went to Iraq voluntarily can be held to account in he Iraqi system for crimes that they committed.

Justice Scalia: Do you think an eight-hour lead is enough?

I don't know.

Mr. Garre: Well, I--

Justice Scalia: It would make a good movie.

Mr. Garre: --Yes.

[Laughter]

Justice Ginsburg: So we have a basic question: Is there habeas jurisdiction; and, as I understand the posture of this case, the Federal courts did not examine the merits of the habeas petition.

They were just hung up on the bare jurisdictional question.

Mr. Garre: That's true.

But we think that it is quite clear from this Court's decisions that if they don't have the authority to enter the preliminary injunctive relief that they did at the end of the day they have no authority to enter it as a preliminary matter.

I think on the jurisdictional point, the one point I wanted to stress is that if this Court does find jurisdiction we think it has to be because of a reading of the habeas statute informed by the Constitution that's limited to citizens.

Extending jurisdiction to everyone in Iraq would be an extraordinary expansion of this Court's decision in Rasul.

Just to be clear, Camp Cropper in Iraq bears none of the characteristics of the Guantanamo Bay that this Court discussed in its opinion in Rasul and that Justice Kennedy emphasized in his concurrence.

So any jurisdictional ruling by this Court, we would urge it to rule only to the circumstances here of the fact of citizenship.

Chief Justice Roberts: The the 20,000-plus people being retained, are they all in connection with security threats?

Or do they involve what I guess we could call common criminals?

Mr. Garre: I think there are both.

This have been 2,000 transfers of individuals from Multinational Force to Iraqi custody, most in connection with criminal proceedings.

The other individuals are held because they're a security threat.

A lot of individuals come in and out of detention.

Obviously the Multinational Force tries to limit the detentions as much as possible.

Here the reason why these people have been subsidy contained so long is because the American courts have stood in the way of the Iraqi criminal proceedings where the Iraqi courts have sought to bring justice to these people under Iraqi law.

Justice Stevens: Mr. Garre, is it the position of the government that this is a war zone?

Mr. Garre: It's... we don't take the position this is like a battlefield situation.

The occupation--

Justice Stevens: Do you think any part of Iraq is like a battlefield situation?

Mr. Garre: --Certainly there are active hostilities in parts of Iraq.

Justice Stevens: Why isn't it a war zone?

Mr. Garre: Well, the occupation has ended.

I think there are active hostilities in part of it.

We have not argued that there is no habeas jurisdiction because of the hostilities there.

We've argued that there is no habeas jurisdiction because they're being held under--

Justice Stevens: That means you haven't made your strongest argument.

Mr. Garre: --Well, if the Court believes that that's our strongest argument, certainly we don't have any objection to having you address it.

[Laughter]

Justice Breyer: But am I right to assume the underlying situation to be that of Hirota?

Mr. Garre: That's jurisdictional.

Justice Breyer: Yes, but you see what I mean by that?

I mean, these issues of the war zone and so forth are not really there in this case; that we're talking here about a person whose being held in a manner that's comparable for habeas purposes to the Japanese or aliens who were held in Hirota.

They're being held by the Army, which is in part, which is in relevant part serving as an occupying force, to be turned over to a different tribunal.

Mr. Garre: That's correct, Justice Breyer.

Justice Breyer: Okay, thank you.

Chief Justice Roberts: Thank you, Mr. Garre.

The case is submitted.