Sandra Omar v. John M. McHugh , 646 F.3d 13 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2010 Decided June 21, 2011
No. 09-5410
SANDRA K. OMAR, ET AL.,
APPELLANTS
v.
JOHN M. MCHUGH, SECRETARY OF THE UNITED STATES
ARMY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02374)
Joseph Margulies argued the cause for appellants. With
him on the briefs were Jonathan Hafetz, Aziz Z. Huq, Emily
Berman, and Eric M. Freedman.
Douglas N. Letter, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Ronald C. Machen Jr., U.S. Attorney, and Jonathan H. Levy,
Attorney.
Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge GINSBURG joins.
Opinion concurring in the judgment filed by Circuit
Judge GRIFFITH.
KAVANAUGH, Circuit Judge: Shawqi Omar is a dual
citizen of Jordan and the United States. Since 2004, the U.S.
military has detained Omar in Iraq based on evidence that
Omar participated in al Qaeda’s terrorist activities there. The
United States apparently intends to transfer Omar to the
custody of Iraq’s government. But since 2005, Omar has
pursued a habeas corpus petition in the U.S. court system
seeking to block his transfer. Even though U.S. forces are
detaining Omar outside U.S. territory, we have jurisdiction to
consider his habeas petition because he is a U.S. citizen. See
Munaf v. Geren, 553 U.S. 674, 685-88 (2008); cf.
Boumediene v. Bush, 553 U.S. 723, 766 (2008); Johnson v.
Eisentrager, 339 U.S. 763, 777 (1950); Al Maqaleh v. Gates,
605 F.3d 84, 94 (D.C. Cir. 2010).
Omar argues that he cannot be transferred to the custody
of Iraqi officials because, he claims, he is likely to be tortured
after his transfer. The U.S. Executive Branch responds that it
does not transfer persons to countries where they are likely to
be tortured. And the Executive Branch maintains that Omar
is not likely to be tortured if transferred to Iraqi custody.
In his initial habeas petition, Omar argued that he had a
habeas corpus and due process right not to be transferred if, as
he alleged, he was likely to be tortured in the custody of the
receiving country. Omar contended that he had a
corresponding right to judicial review of conditions in the
receiving country before he could be transferred. The
Supreme Court unanimously rejected that argument in 2008,
3
concluding that Omar did not have a habeas corpus or due
process right to judicial second-guessing of the Executive’s
determination that he was not likely to be tortured in Iraqi
custody. See Munaf, 553 U.S. at 692-703.
In his amended habeas petition, Omar now asserts that
the Foreign Affairs Reform and Restructuring Act of 1998
(which has been supplemented by the REAL ID Act of 2005)
gives him a right to judicial review of conditions in the
receiving country before he may be transferred. Omar’s
statutory argument is no more persuasive than the
constitutional argument already rejected by the Supreme
Court. As this Court has previously held, the FARR Act and
the REAL ID Act do not give military transferees such as
Omar a right to judicial review of their likely treatment in the
receiving country. See Kiyemba v. Obama (“Kiyemba II”),
561 F.3d 509, 514-15 (D.C. Cir. 2009).
Omar also has refashioned his previously rejected
constitutional argument. He contends that he is entitled under
the Constitution’s habeas corpus guarantee – either by itself
or in conjunction with the Due Process Clause or the FARR
Act – to judicial review of conditions in the receiving country.
We disagree. As the Supreme Court already ruled when
considering Omar’s case in Munaf, the Constitution’s
guarantee of habeas corpus does not encompass such a right.
We therefore affirm the District Court’s denial of Omar’s
petition for a writ of habeas corpus. In so doing, we
recognize that the policy arguments supporting Omar’s
position are not insubstantial. Congress remains free to
provide military transferees such as Omar with a right to
judicial review of conditions in the receiving country before
they are transferred. But Congress has not done so.
4
I
Shawqi Omar is a citizen of both Jordan and the United
States. In October 2004, the U.S. military captured him in
Baghdad, Iraq. The United States suspected that Omar had
been working with the leadership of al Qaeda in Iraq by
recruiting foreign fighters, coordinating with other terrorist
groups, and planning and executing kidnappings. In a
separate proceeding, the Government of Iraq convicted Omar
of immigration violations, and he was sentenced to 15 years
in prison.
The U.S. military has detained Omar since 2004 and is
currently holding him at Camp Cropper, Iraq. The United
States apparently intends to transfer Omar to Iraqi custody. In
2005, Omar’s wife, Sandra Omar, and his son, Ahmed Omar,
filed a next-friend petition for a writ of habeas corpus in the
U.S. District Court for the District of Columbia. Omar
sought, among other things, an injunction preventing his
transfer to Iraqi custody.
Omar’s case reached the Supreme Court in 2008. See
Munaf v. Geren, 553 U.S. 674 (2008).1 Omar argued that he
1
This case has followed a meandering course. In 2006, the
District Court issued an injunction preventing the U.S. Government
from transferring Omar to Iraq. Omar v. Harvey, 416 F. Supp. 2d
19 (D.D.C. 2006). On appeal of that ruling, the initial question
presented to this Court was whether the federal courts had
jurisdiction given that Omar was in the custody of a multi-national
force, not an entirely American force. Omar v. Harvey, 479 F.3d 1,
5-6 (D.C. Cir. 2007). The Supreme Court had analyzed a similar
issue in Hirota v. MacArthur, 338 U.S. 197 (1948), and found no
jurisdiction to consider habeas claims raised by detainees in the
custody of a multi-national force occupying Japan after World War
II. In Omar, a panel of this Court set forth a four-factored test to
5
was likely to be tortured if transferred to Iraqi authorities, that
he had a right under “the substantive component of the Due
Process Clause” against “transfers to likely torture,” and that
the courts had the authority and duty to enforce that right by
inquiring into his likely treatment in the receiving country,
Iraq. Brief for Habeas Petitioners at 51, Munaf, 553 U.S. 674(Nos. 06-1666, 07-394). The Court unanimously rejected
Omar’s argument, pointing to the Executive’s assertion that
“it is the policy of the United States not to transfer an
individual in circumstances where torture is likely to result”
and to the Executive’s determination that Omar was unlikely
to face torture while in Iraqi custody. Munaf, 553 U.S. at 702.
The Court stated that “[t]he Judiciary is not suited to second-
guess such determinations.” Id. In so concluding, the Court
did not distinguish between due process rights and habeas
corpus rights. The Court followed longstanding extradition
flesh out the Hirota jurisdictional issue and, applying that test,
found jurisdiction to hear Omar’s claims. See Omar, 479 F.3d at 6-
9. In a later case involving a different American citizen, Munaf,
held by a multi-national force in Iraq under different circumstances,
a panel of this Court applied the Omar test to Munaf’s habeas
petition. Applying that test, the Munaf panel found no jurisdiction
over Munaf’s petition; in doing so, however, the panel expressed
doubts about the logic and continued vitality of the Supreme
Court’s Hirota decision, at least with respect to detention of
American citizens. Munaf v. Geren¸ 482 F.3d 582 (D.C. Cir. 2007).
On review of the Omar and Munaf decisions together, the Supreme
Court significantly cabined the Hirota precedent, essentially
adopting Justice Douglas’s concurrence from that case, and
simplified the jurisdictional question when, as here, an American
citizen is detained by U.S. forces operating as part of a multi-
national force. Munaf, 553 U.S. at 685-88. With Hirota no longer
an obstacle and because Omar and Munaf are U.S. citizens, the
Supreme Court found jurisdiction over Omar’s and Munaf’s
petitions but rejected their constitutional claims on the merits. Id.
at 689-705.
6
principles and precedents, noting that “[h]abeas corpus has
been held not to be a valid means of inquiry into the treatment
the relator is anticipated to receive in the requesting state.”
Id. at 700 (quoting M. BASSIOUNI, INTERNATIONAL
EXTRADITION: UNITED STATES LAW AND PRACTICE 921
(2007)) (emphasis omitted). The Court held that Omar’s
petition did not “state grounds upon which habeas relief may
be granted.” Munaf, 553 U.S. at 692. Omar’s fear of torture
in Iraqi custody did not trump the general principle that,
absent congressional direction otherwise, courts may not
inquire into the treatment a transferee such as Omar might
receive in the custody of another sovereign. See id. at 700-03.
In his submission to the Supreme Court, Omar also
argued that he had a right under the Foreign Affairs Reform
and Restructuring Act of 1998 to judicial review of conditions
in the receiving country. See 8 U.S.C. § 1231 note. The
Court declined to reach Omar’s FARR Act claim because he
had not advanced it in his initial petition for habeas corpus.
The Court, in any event, expressed doubt that Omar would
have a claim under the Act. See Munaf, 553 U.S. at 703 &
n.6.
Omar then filed an amended petition for habeas corpus in
the District Court. Omar’s amended petition raised a stew of
FARR Act, habeas corpus, and due process claims. The
District Court granted the Government’s motion to dismiss.
We review that decision de novo.
II
Omar argues that the Foreign Affairs Reform and
Restructuring Act of 1998 grants him a right to judicial
review of conditions in the receiving country – here, Iraq –
before he is transferred. But this Court has already held that
7
the FARR Act, as supplemented by the REAL ID Act of
2005, does not give military transferees such as Omar that
right. See Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509,
514-15 (D.C. Cir. 2009). In light of that controlling circuit
precedent, Omar’s argument is unavailing.
The Foreign Affairs Reform and Restructuring Act of
1998 implements Article 3 of the Convention Against
Torture. The Convention Against Torture was signed in 1988
by a representative of the President and ratified in 1990 by the
U.S. Senate. See United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 108 Stat. 382, 1465 U.N.T.S 85; 136 CONG. REC.
S17,491-92 (daily ed. Oct. 27, 1990). Article 3 of the
Convention Against Torture provides: “No State Party shall
expel, return (‘refouler’) or extradite a person to another State
where there are substantial grounds for believing that he
would be in danger of being subjected to torture.” This
multilateral treaty is non-self-executing and thus does not
itself create any rights enforceable in U.S. courts. See
Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008).
The FARR Act provides, in relevant part:
(a) POLICY.—It shall be the policy of the United States
not to expel, extradite, or otherwise effect the involuntary
return of any person to a country in which there are
substantial grounds for believing the person would be in
danger of being subjected to torture, regardless of
whether the person is physically present in the United
States.
....
(d) REVIEW AND CONSTRUCTION.—Notwithstanding any
other provision of law . . . no court shall have jurisdiction
to review the regulations adopted to implement this
8
section, and nothing in this section shall be construed as
providing any court jurisdiction to consider or review
claims raised under the Convention [Against Torture] or
this section, or any other determination made with respect
to the application of the policy set forth in subsection (a),
except as part of the review of a final order of removal
pursuant to section 242 of the Immigration and
Nationality Act (8 U.S.C. 1252).
Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 822 (1998)
(codified at 8 U.S.C. § 1231 note) (emphasis added).
By its terms, the FARR Act provides a right to judicial
review of conditions in the receiving country only in the
immigration context, for aliens seeking review of a final order
of removal. The FARR Act does not give extradition or
military transferees – the other two categories in which
transfer issues typically arise – a right to judicial review of
conditions in the receiving country. Omar is a military
transferee, not an alien seeking review of a final order of
removal under the immigration laws. Therefore, the FARR
Act does not afford him any right to judicial review of
conditions in the receiving country. See Mironescu v.
Costner, 480 F.3d 664, 674-76 (4th Cir. 2007) (FARR Act
allows claims only for immigration detainees facing removal);
see also Munaf v. Geren, 553 U.S. 674, 703 n.6 (2008)
(“claims under the FARR Act may be limited to certain
immigration proceedings”).
It is true that § 2242(a) of the FARR Act states a broad
“policy” that the Executive Branch presumably has a
responsibility to follow with respect to all transfers, at least
absent any claim of unconstitutionality under Article II of the
Constitution. The Act also plainly says, however, that only
immigration transferees may obtain judicial review of
9
conditions in the receiving country before they are
transferred.
Even if the FARR Act had extended a judicial review
right to extradition or military transferees such as Omar, a
subsequent statute – the REAL ID Act of 2005 – made clear
that those kinds of transferees have no such right. The REAL
ID Act states that only immigration transferees have a right to
judicial review of conditions in the receiving country, during
a court’s review of a final order of removal. That Act
specifies:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, a petition for review
filed with an appropriate court of appeals in accordance
with this section [§ 242 of the Immigration and
Nationality Act] shall be the sole and exclusive means for
judicial review of any cause or claim under the United
Nations Convention Against Torture and Other Forms of
Cruel, Inhuman, or Degrading Treatment or Punishment
....
Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005)
(codified at 8 U.S.C. § 1252(a)(4)).
Omar is not subject to a removal order and has not filed –
and, as a military transferee, is not eligible to file – a petition
for review under § 242 of the Immigration and Nationality
Act. The REAL ID Act thus confirms that Omar possesses no
statutory right to judicial review of conditions in the receiving
10
country. See Kiyemba II, 561 F.3d at 514-15 (citing REAL
ID Act).2
III
According to Omar, the Constitution’s guarantees of
habeas corpus and due process grant him a right to judicial
review of conditions in Iraq before he is transferred. We
disagree with Omar’s constitutional argument.
The Supreme Court ruled in Munaf – litigation in which
Omar himself was a party – that the Constitution does not
grant extradition or military transferees such as Omar a
habeas corpus or due process right to judicial review of
conditions in the receiving country before they are
transferred. Munaf v. Geren, 553 U.S. 674, 700-03 (2008).3
2
Omar briefly contends that his claim is under the FARR Act
and thus is not a “cause or claim” under the Convention Against
Torture that is thereby barred by the REAL ID Act. But it is
undisputed that the FARR Act implements the Convention Against
Torture. Therefore, as this Court has already held, a claim under
this section of the FARR Act is a claim under the Convention
Against Torture and is barred by the REAL ID Act. See Kiyemba
II, 561 F.3d at 514-15.
Consistent with our decision in Kiyemba II, several other
courts of appeals have similarly concluded that a claim about
conditions in the receiving country may be raised only during
review of a final order of removal under the Immigration and
Nationality Act. See, e.g., Lovan v. Holder, 574 F.3d 990, 998 (8th
Cir. 2009); Khouzam v. Attorney Gen. of the U.S., 549 F.3d 235,
245 (3d Cir. 2008); Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir.
2005).
3
Munaf addressed Omar’s argument that the Constitution’s
habeas corpus guarantee gave him a right to judicial review of
conditions in the receiving country. It is thus quite possible that
Omar’s current habeas corpus arguments, although refashioned, are
11
In so ruling, the Court recognized that there are three
principal settings in which the issue arises: (i) extradition, (ii)
transfer of military detainees, and (iii) removal of
immigration detainees.
Those facing extradition traditionally have not been able
to maintain habeas claims to block transfer based on
conditions in the receiving country. Rather, applying what
has been known as the rule of non-inquiry, courts historically
have refused to inquire into conditions an extradited
individual might face in the receiving country. In Munaf, the
Supreme Court reaffirmed this precise point, stating “we have
recognized that it is for the political branches, not the
Judiciary, to assess practices in foreign countries.” Munaf,
553 U.S. at 700-01; see also, e.g., Neely v. Henkel, 180 U.S.
109, 122-23 (1901); Noriega v. Pastrana, 564 F.3d 1290,
1294-96 (11th Cir. 2009); Hoxha v. Levi, 465 F.3d 554, 563
(3d Cir. 2006); United States v. Kin-Hong, 110 F.3d 103, 110-
11 & nn.11-12 (1st Cir. 1997); Ahmad v. Wigen, 910 F.2d
1063, 1066-67 (2d Cir. 1990); Jacques Semmelman, Federal
Courts, the Constitution, and the Rule of Non-Inquiry in
International Extradition Proceedings, 76 CORNELL L. REV.
1198 (1991).
Similarly, military transferees traditionally have not been
able to raise habeas claims to prevent transfer based on
conditions in the receiving country. Since the Founding, the
United States has routinely transferred wartime detainees at
the end of hostilities or as part of an exchange, without
judicial review of conditions the transferees would face in the
other nation. In Boumediene v. Bush, the Supreme Court
barred as res judicata. We need not decide that question because
res judicata is not jurisdictional and Omar’s habeas arguments are
unavailing in any event.
12
explained that negotiated exchange of prisoners was “a
wartime practice well known to the Framers,” and “[j]udicial
intervention might have complicated” those negotiations. 553
U.S. 723, 747-48 (2008); see also Kiyemba v. Obama
(“Kiyemba II”), 561 F.3d 509, 519-20 & n.6 (D.C. Cir. 2009)
(Kavanaugh, J., concurring) (collecting sources).
Therefore, Omar is in a class of would-be transferees
who historically have not been able to bring habeas claims to
obtain judicial review of conditions in the receiving country
before being transferred. 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. See Omar
Br. at 39; see also Munaf, 553 U.S. at 700-02 (relying on
extradition cases to analyze Omar’s previous claim). But
neither military detainees nor those facing extradition
historically have possessed a right to judicial review of
conditions in the receiving country before they were
transferred.
That history matters: In habeas cases, we seek guidance
from history “addressing the specific question before us.”
Boumediene, 553 U.S. at 746. Here, the history is clear on
the specific question before us. Historically, a would-be
transferee such as Omar has possessed no right to judicial
review of conditions the transferee might face in another
country. As the Court said in Munaf: “Habeas corpus has
been held not to be a valid means of inquiry into the treatment
the relator is anticipated to receive in the requesting state.”
Munaf, 553 U.S. at 700 (quoting M. BASSIOUNI,
INTERNATIONAL EXTRADITION: UNITED STATES LAW AND
PRACTICE 921 (2007)) (emphasis omitted). Instead, as Munaf
13
explained, history demonstrates that “it is for the political
branches, not the Judiciary, to assess practices in foreign
countries and to determine national policy in light of those
assessments.” Munaf, 553 U.S. at 700-01 (citing Neely v.
Henkel, 180 U.S. 109 (1901), and Wilson v. Girard, 354 U.S.
524 (1957)).
In light of that history, the Supreme Court unanimously
ruled in Munaf that transferees such as Omar (indeed, Omar
himself) do not possess a habeas or due process right to
judicial review of conditions in the receiving country.4
Here, Omar tries to dodge Munaf by suggesting that the
Constitution’s habeas corpus guarantee alone gives him a
right to judicial review of conditions in the receiving country.
That makes no sense. As Omar himself stated in his brief in
Munaf: “The Due Process and Suspension Clauses converge
in habeas.” Brief for Habeas Petitioners at 28, Munaf, 553
U.S. 674 (Nos. 06-1666, 07-394). Munaf held that habeas and
due process together do not give transferees such as Omar a
right to judicial review of conditions in the receiving country.
It would be absurd, therefore, to think that habeas alone gives
Omar such a right.5
4
Since Munaf, this Court has several times applied that
decision, and the Supreme Court has subsequently denied review in
each of those cases. See Kiyemba II, 561 F.3d 509, cert. denied,
130 S. Ct. 1880 (2010); Khadr v. Obama, No. 08-5233 (D.C. Cir.
Sept. 3, 2010), cert. denied, No. 10-751 (U.S. May 23, 2011);
Mohammed v. Obama, No. 10-5218 (D.C. Cir. July 8, 2010), stay
denied, No. 10-746 (U.S. July 16, 2010), dismissed as moot (U.S.
Apr. 12, 2011).
5
Munaf considered a due process claim raised in a habeas
petition, and it analyzed the habeas and due process protections
without distinguishing the two. The Court in Munaf did not need to
distinguish between the two constitutional provisions because the
14
In a related effort to avoid Munaf, Omar contends that he
advanced only a procedural due process argument in that case,
as opposed to the substantive due process argument he asserts
now. But his brief in Munaf stated that “Omar and Munaf
have rights under both the substantive component of the Due
Process Clause and the FARR Act against transfers to likely
torture.” Brief for Habeas Petitioners at 51, Munaf, 553 U.S.
674 (Nos. 06-1666, 07-394). When the Court addressed the
merits of Omar’s claim, it rejected his substantive and
procedural due process claims. See Munaf, 553 U.S. at 692-
703. In light of the Supreme Court’s decision, we reject
Omar’s substantive due process claim here.
In short, the inquiry that Omar asks this Court to
undertake in this habeas case – reviewing the conditions
Omar might face in Iraqi custody – is the precise inquiry that
the Supreme Court in Munaf already rejected. As a lower
protections of due process and habeas corpus are inextricably
intertwined and overlapping in the context of a petition for habeas
corpus filed by a military transferee such as Omar. See generally
Hamdi v. Rumsfeld, 542 U.S. 507, 525-29 (2004) (plurality
opinion); id at 538 (“a court that receives a petition for a writ of
habeas corpus from an alleged enemy combatant must itself ensure
that the minimum requirements of due process are achieved”); id. at
555-58 (Scalia, J., dissenting) (“The two ideas central to
Blackstone’s understanding – due process as the right secured, and
habeas corpus as the instrument by which due process could be
insisted upon by a citizen illegally imprisoned – found expression
in the Constitution’s Due Process and Suspension Clauses.”); Fay
v. Noia, 372 U.S. 391, 402 (1963) (“Vindication of due process is
precisely [the] historic office” of habeas corpus); Joshua Alexander
Geltzer, Of Suspension, Due Process, and Guantanamo: The Reach
of the Fifth Amendment after Boumediene and the Relationship
Between Habeas Corpus and Due Process, U. PA. J. CONST. L.
(forthcoming).
15
court, even apart from possible res judicata problems with
Omar’s habeas corpus submission, we have no authority to
toss Munaf aside in this manner. “Vertical stare decisis – both
in letter and in spirit – is a critical aspect of our hierarchical
Judiciary headed by ‘one supreme Court.’” Winslow v.
FERC, 587 F.3d 1133, 1135 (D.C. Cir. 2009) (quoting U.S.
CONST. art. III, § 1).6
IV
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. And this Court
has established that there is no statutory right for extradition
or military transferees to obtain such review. No doubt
recognizing those obstacles to his submission, Omar strings
together a series of quasi-constitutional arguments: He
suggests that the Constitution’s habeas corpus guarantee
somehow combines with the FARR Act to give him a right to
judicial review of conditions in the receiving country, even
though neither the Constitution nor the FARR Act by itself
does so. We disagree with those arguments; indeed, we have
some trouble understanding them.
First, Omar at times appears to suggest that Congress
cannot give immigration transferees a right to judicial review
of conditions in the receiving country unless Congress also
extends the right to extradition and military transferees.
6
In Munaf, the Supreme Court noted that it was not deciding
“a more extreme case in which the Executive has determined that a
detainee is likely to be tortured but decides to transfer him
anyway.” 553 U.S. at 702. We too have no need to decide such a
question given the Government’s stated policy with respect to
Omar.
16
Whatever the merits of that all-or-nothing position as a policy
matter, it strikes us as frivolous as a constitutional matter. We
see no constitutional reason Congress cannot incrementally or
selectively create new rights for transferees beyond the rights
guaranteed by the Constitution, at least so long as no suspect
classification is employed and the scheme has a rational basis
that satisfies equal protection principles.
Second, Omar seems to say that the FARR Act violates
the Constitution by declaring a statutory “policy” against
transfer to torture for all transferees but then affording only
immigration transferees the right to judicial review of
conditions in the receiving country. We again fail to see how
that poses a serious constitutional issue. As a practical and a
legal matter, that scenario is no different from Congress
creating a right only for immigration transferees to obtain
judicial review of conditions in the receiving country. To
reiterate, Congress need not proceed in an all-or-nothing
manner when expanding judicial review for transferees.
Subject to the constraints of Article II, Congress remains
free of course to impose broader responsibilities on the
Executive, beyond those required by the Constitution, while
declining to provide judicial review of the Executive’s
compliance with those additional statutory responsibilities.
See, e.g., Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
66-67 (2004) (statute does not provide for judicial review of
agency’s “compliance with the broad statutory mandate”);
Webster v. Doe, 486 U.S. 592, 599-601 (1988) (statute
precludes judicial review of statutory claim against CIA);
Noriega v. Pastrana, 564 F.3d 1290, 1294-96 (11th Cir. 2009)
(statute bars judicial review of habeas claim that State
Department did not comply with Geneva Convention); see
17
generally 5 U.S.C. § 701(a)(1) (no judicial review when
statute precludes judicial review of statutory claims).7
That is precisely what Congress did in § 2242(a) of the
FARR Act and the REAL ID Act. Because Omar has no
constitutional right at stake here (as Munaf made clear),
Congress has no obligation to provide judicial review for the
extra-constitutional responsibilities the FARR Act imposes on
the Executive Branch. Omar suggests that Congress cannot
express a policy for the Executive Branch to follow without
also creating a right to judicial enforcement of that policy. No
case has ever said that. Under Omar’s approach, Congress
may not express a general policy regarding transfers and
make that policy judicially enforceable only for immigration
transferees. Yet Congress could constitutionally achieve the
same result simply by declaring that the transfer policy itself
applies only to immigration transferees. The Constitution
does not turn on such arcane and empty semantics.8
7
Congress’s use of the word “policy” in § 2242(a) of the
FARR Act – rather than a word such as “right” – reinforces the
conclusion that Congress did not intend to create an “entitlement”
for all transferees that in turn might trigger constitutional habeas or
procedural due process protections. Cf. Town of Castle Rock v.
Gonzales, 545 U.S. 748 (2005); Sandin v. Conner, 515 U.S. 472(1995).
8
Omar also appears to suggest that there is a constitutional
difference between Congress’s (i) refusing to grant a statutory right
to judicial review of conditions that extradition and military
transferees may face in the receiving country and (ii) refusing to
grant “jurisdiction” for courts to review conditions that extradition
and military transferees may face in the receiving country. We fail
to grasp the significance of such a distinction for purposes of the
constitutional guarantee of habeas corpus. As a practical matter,
the two situations are exactly the same for the transferees. And as a
legal matter, the only impact of Congress’s proceeding via the
“jurisdiction” label is to make clear that FARR Act claims are not
18
Third, Omar advances a kind of one-way ratchet theory.
He suggests that Congress, through the REAL ID Act, could
not take away any statutory right it created in the FARR Act
of 1998. As an initial matter, as we explained in our statutory
analysis above, the REAL ID Act merely confirmed what the
FARR Act said – that only immigration transferees may
obtain judicial review of conditions in the receiving country.
But even if the REAL ID Act took away a statutory right that
the FARR Act had previously granted, that scenario poses no
constitutional problem. Congress does not amend the
Constitution, or alter the scope of the constitutional writ of
habeas corpus, whenever it amends a statutory right that
might be available in a habeas case. Congress thus remains
generally free to undo a statute that applies in habeas cases,
just as it can undo other statutory rights that it has created.
See Felker v. Turpin, 518 U.S. 651, 664 (1996) (“[J]udgments
about the proper scope of the writ are ‘normally for Congress
to make.’”) (quoting Lonchar v. Thomas, 517 U.S. 314, 323
(1996)); Morales v. Bezy, 499 F.3d 668, 670 (7th Cir. 2007)
(quoting LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir.
1998)) (“curtailing an optional statutory enlargement does not
violate the suspension clause”).9
available to transferees such as Omar even if the Executive Branch
has forfeited or waived an argument against the claims.
9
One can imagine a statutory habeas right that has existed for
so long that the right has come to be considered part of the
constitutionally guaranteed writ. See Boumediene, 553 U.S. at 746;
INS v. St. Cyr, 533 U.S. 289, 300-01 (2001); cf. Washington v.
Glucksberg, 521 U.S. 702, 710-23 (1997) (evolution of rights
protected by substantive due process doctrine). But the FARR Act
was only seven years old when the REAL ID Act was passed. It
would be odd to think that Congress could entrench a statute
against repeal – effectively amending the Constitution without
observing the requirements of Article V – simply by passing a law
19
The Seventh Circuit characterized a one-way ratchet
theory of the kind advanced by Omar as “irrational.”
Morales, 499 F.3d at 670. In his separate opinion in St. Cyr
(on a point the St. Cyr majority did not address), Justice
Scalia labeled the one-way ratchet argument “too absurd to be
contemplated.” INS v. St. Cyr, 533 U.S. 289, 342 (2001)
(Scalia, J., dissenting and “contemplat[ing] it no further”).
Other noted scholars and jurists have agreed. See, e.g., David
L. Shapiro, Habeas Corpus, Suspension, and Detention:
Another View, 82 NOTRE DAME L. REV. 59, 74 (2006)
(“Surely, the guarantee [of the writ of habeas corpus] is not a
one-way ratchet, in which every advance in the availability of
the writ becomes part of the guarantee itself.”); cf. Swain v.
Pressley, 430 U.S. 372, 384-85 (1977) (Burger, C.J.,
concurring) (no constitutional problem when Congress
partially retracts statutory enlargement of habeas rights);
Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack
on Criminal Judgments, 38 U. CHI. L. REV. 142, 171 (1970)
(“What Congress has given, Congress can partially take
away.”). We likewise reject Omar’s argument that the REAL
ID Act, to the extent it amended the FARR Act, violated the
Constitution’s guarantee of habeas corpus.10
and allowing it to sit on the books for seven years. See Morales,
499 F.3d at 670.
10
In advancing his quasi-constitutional claims, Omar also cites
INS v. St. Cyr, 533 U.S. 289 (2001). For two independent reasons,
we think he over-reads that case. First, St. Cyr did not concern
extradition or military transfers, but rather addressed removal of
aliens under the immigration laws. Omar is not an alien facing
removal, and Omar himself acknowledges that his case is not akin
to that of an alien threatened with removal. See Omar Br. at 34-39.
Second, in St. Cyr, the Supreme Court identified a potential
violation of the Constitution’s habeas corpus guarantee only after
examining the historical foundation of the claim St. Cyr asserted.
20
In sum, Congress has no constitutional obligation to grant
extradition and military transferees such as Omar a right to
judicial review of conditions in the receiving country. The
fact that Congress, in the FARR Act, created such a right for
immigration transferees does not raise a constitutional
problem simply because Congress did not also extend the
right to extradition and military transferees.11
The history showed that St. Cyr’s claim – that he was eligible for
discretionary relief from removal – “could have been answered in
1789 by a common-law judge with power to issue the writ of
habeas corpus.” 533 U.S. at 304-05. The Court in St. Cyr thus did
not hold what Omar in effect argues: namely, that the
Constitution’s habeas guarantee both (i) is unmoored from the
historical scope of the writ and (ii) requires that Congress provide
for judicial review of the Executive Branch’s compliance with
every statutory responsibility Congress imposes on the Executive
Branch. The Court in St. Cyr protected and enforced what it
determined to be the historical scope of the writ. See id. at 300-05;
cf. id. at 341-45 (Scalia, J., dissenting) (interpreting the Court’s
opinion as enforcing a right that the Court determined to be within
the historical scope of the writ). The Court simply left open the
possibility that the habeas corpus right might be somewhat broader
than it was in 1789. Cf. supra note 8. Here, the Supreme Court has
already examined the relevant history and held that the right Omar
asserts – a right to judicial review of conditions in the receiving
country before he is transferred – is not encompassed by the
Constitution’s guarantee of habeas corpus. See Munaf v. Geren,
553 U.S. 674, 700-03 (2008).
11
Omar also invokes the constitutional avoidance doctrine.
But the FARR Act and REAL ID Act are clear and, in light of
Munaf, Omar lacks a credible constitutional argument. “A clear
statute and a weak constitutional claim are not a recipe for
successful invocation of the constitutional avoidance canon.”
Cubaexport v. Dep’t of Treasury, No. 09-5196, slip op. at 14 (D.C.
Cir. Mar. 29, 2011) (citing Clark v. Martinez, 543 U.S. 371, 381
(2005)); see also St. Cyr, 533 U.S. at 299-300 (requiring “serious
21
***
In Munaf, the Supreme Court held that habeas corpus and
due process do not give a transferee such as Omar a right to
judicial review of conditions in the receiving country.
Congress is free to establish additional statutory protections
with respect to transfers, whether to correspond U.S. laws to
evolving international law norms or for other policy reasons.
Indeed, Congress has done so in the immigration context by
allowing aliens in removal proceedings to obtain judicial
review of conditions in the receiving country before being
transferred. But Congress has not created such a right for
extradition or military transferees such as Omar. Congress is
not constitutionally barred from proceeding in that
incremental manner when affording new statutory rights to
transferees.
We affirm the judgment of the District Court.
So ordered.
constitutional problems” and a plausible “alternative interpretation
of the statute” to apply constitutional avoidance canon).
GRIFFITH, Circuit Judge, concurring in the judgment: The
majority concludes that the FARR Act does not afford Omar
“a right to judicial review of conditions in the receiving
country.” Majority Op. 6. I agree that the statute grants Omar,
who is being held in Iraq by the U.S. military, no right against
being transferred to Iraqi authorities, but I disagree with the
majority’s suggestion that we have no jurisdiction to consider
his claim. Our quarrel over jurisdiction stems from my belief
that the FARR Act “trigger[s] constitutional habeas” by
giving Omar a colorable claim that his transfer to Iraqi
authorities would be unlawful. Majority Op. 17 n.7 (emphasis
omitted). When an American citizen is in U.S. custody, the
Constitution’s guarantee of habeas corpus entitles him to
assert any claim that his detention or transfer is unlawful.
Because Congress may not deprive Omar of access to the
courts without suspending the writ or repealing the statutory
basis for his claim, neither of which it has done here, we must
consider his argument on the merits.
Section 2242(a) of the FARR Act states that it is U.S.
policy not to “expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there
are substantial grounds for believing the person would be in
danger of being subjected to torture.” Pub. L. No. 105-277,
§ 2242(a), 112 Stat. 2681-1, 2681-822 (1998) (codified at 8
U.S.C. § 1231 note). That gives Omar a colorable claim that it
would be unlawful to transfer him to the Iraqi government,
which might subject him to torture.1 The federal habeas
1
I agree with the majority that Congress can “express a policy for
the Executive Branch to follow without also creating a right to
judicial enforcement of that policy.” Majority Op. 17. But Omar’s
claim is that Congress did more than that in the FARR Act—that it
gave him a judicially enforceable right against transfer to torture.
Even though Omar’s reading of the FARR Act is wrong on the
merits, the Constitution’s habeas corpus guarantee gives us
jurisdiction to consider his claim.
2
statute, 28 U.S.C. § 2241, gives us jurisdiction to hear such a
claim from an American citizen, Munaf v. Geren, 553 U.S.
674, 688 (2008), and the Supreme Court has repeatedly held
that only the clearest of statements from Congress should be
read as repealing our habeas jurisdiction, see Demore v. Kim,
538 U.S. 510, 517 (2003) (observing that “where a provision
precluding review is claimed to bar habeas review,” the
Court’s cases require “a particularly clear statement that such
is Congress’s intent”); INS v. St. Cyr, 533 U.S. 289, 299
(2001) (“Implications from statutory text or legislative history
are not sufficient to repeal habeas jurisdiction; instead,
Congress must articulate [a] specific and unambiguous
statutory directive[] to effect a repeal.”).
Section 2242(d) of the FARR Act, which the majority
suggests strips the federal courts of jurisdiction to hear
Omar’s claim, does not speak with the required clarity.
Although it leaves no doubt that the FARR Act does not itself
“provid[e] any court jurisdiction” to hear claims outside the
immigration context, it just as plainly leaves undisturbed our
jurisdiction to hear FARR Act claims under 28 U.S.C. § 2241.
A plurality of the circuits have reached the same conclusion.
See Cadet v. Bulger, 377 F.3d 1173, 1182-83 (11th Cir.
2004); Ogbudimpka v. Ashcroft, 342 F.3d 207, 215-18 (3d
Cir. 2003); Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st
Cir. 2003); Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir.
2003); Cornejo-Barreto v. Seifert (Cornejo-Barreto I), 218
F.3d 1004, 1016 n.13 (9th Cir. 2000). But see Mironescu v.
Costner, 480 F.3d 664, 676 (4th Cir. 2007); Cornejo-Barreto
v. Seifert (Cornejo-Barreto II), 379 F.3d 1075, 1086 (9th Cir.
2004), vacated as moot 389 F.3d 1307 (9th Cir. 2004) (en
banc). The different and much clearer language Congress
used in the same subsection to strip our jurisdiction to review
FARR Act regulations confirms this reading. Congress has
told us in unmistakable terms that, “[n]otwithstanding any
3
other provision of law,” no court “ha[s] jurisdiction to review
the regulations adopted to implement [the FARR Act],” and
that “nothing in [the FARR Act] shall be construed as
providing any court jurisdiction” to hear a claim like Omar’s.
Pub. L. No. 105-277, § 2242(d), 112 Stat. at 2681-822.
“Nothing . . . but a different intent explains the different
treatment.” Lindh v. Murphy, 521 U.S. 320, 329 (1997).
While section 2242(d) does not purport to deprive us of
jurisdiction to consider Omar’s claim against transfer-to-
torture, section 106 of the REAL ID Act does. See Pub. L.
No. 109-13, § 106, 119 Stat. 231, 310 (2005) (codified at 8
U.S.C. § 1252(a)(4)). In that provision Congress declared that
we do not have power to consider FARR Act claims outside
of the immigration context, “[n]otwithstanding any other
provision of law . . . including section 2241 of title 28 . . . or
any other habeas corpus provision.” Id. This is precisely the
sort of “clear, unambiguous, and express statement of
congressional intent to preclude judicial consideration” that
the Supreme Court’s cases require for Congress to strip
statutory habeas jurisdiction. St. Cyr, 533 U.S at 314; see also
Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 514-15 (D.C.
Cir. 2009) (holding that the REAL ID Act strips our
jurisdiction to consider FARR Act claims, but not passing on
whether this would create a Suspension Clause problem if the
issue were pressed). And thus Omar’s argument presents a
novel issue: whether Congress can strip the courts of habeas
jurisdiction to consider a statutory claim that a transfer is
unlawful without suspending the writ. As I read the cases and
the history, the assumption that undergirds the Suspension
Clause is that a prisoner is entitled to raise any claim that his
detention or transfer is unlawful, and Congress cannot deny
4
him access to the courts to assert such a claim unless it repeals
the basis for the claim or suspends the writ.2
The majority argues that we need not reach the merits of
Omar’s claim because he “has no constitutional right at stake
here.” Majority Op. 17. But the majority’s view of the habeas
jurisdiction protected by the Suspension Clause is too
cramped. In St. Cyr, the Supreme Court, canvassing the
history of habeas, found “no suggestion that habeas relief in
cases involving Executive detention was only available for
constitutional error,” 533 U.S. at 302-03, and concluded
instead that the Great Writ “has always been available to
review the legality of Executive detention,” regardless of
whether a prisoner’s claim is based on “the Constitution or
laws or treaties of the United States.” Id. at 305 (internal
quotation marks omitted).
At common law, the writ of habeas corpus extended to all
detention “contra legem terrae,” i.e., against the law of the
land, 1 EDWARD COKE, THE SECOND PART OF THE INSTITUTES
OF THE LAWS OF ENGLAND 54 (Williams S. Hein Co. 1986)
(1642), and was “efficacious . . . in all manner of illegal
confinement,” 3 WILLIAM BLACKSTONE, COMMENTARIES
*131. Nothing in the historical record suggests that at the time
of the Founding a prisoner could not raise “extra-
constitutional” statutory claims when challenging his
detention in habeas. Eighteenth-century English habeas courts
would order the release of prisoners whose detention violated
a statute. See, e.g., King v. Nathan, (1724) 93 Eng. Rep. 914
(K.B.); 2 Strange 880 (considering bankrupt debtor’s statutory
2
Of course, we have no jurisdiction to consider a habeas
petitioner’s “wholly insubstantial and frivolous” claim, Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Bell v.
Hood, 327 U.S. 678, 685 (1946)), but the majority does not suggest
that Omar’s FARR Act claim falls in that category.
5
argument); Hollingshead’s Case, (1702) 91 Eng. Rep. 307
(K.B.); 1 Salkeld 351 (same); Mellichip’s Case, Morning
Chronicle, June 18, 1777 (Mansfield, J.), quoted in 1 JAMES
OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH
OF ENGLISH LAW IN THE EIGHTEENTH CENTURY 78 (1992)
(allowing seaman to raise statutory and common law claims
that he was not subject to impressment). State habeas courts at
the time of the Founding also entertained statutory claims.
See, e.g., Kennedy & Co. v. Fairman, 2 N.C. (1 Hayw.) 408(N.C. Super. Ct. L. & Eq. 1796) (debtor); Respublica v.
Keppele, 2 U.S. 197, 198-99 (Pa. 1793) (indentured servant);
Respublica v. Betsey, 1 U.S. 469 (Pa. 1789) (slave); see also
Commonwealth v. Downes, 41 Mass. (24 Pick.) 227 (1836)
(Shaw, C.J.) (military enlistee); In re Stacy, 10 Johns. 328,
333-34 (N.Y. Sup. Ct. 1813) (Kent, C.J.) (ordering release of
civilian in military custody accused of treason). If the
Suspension Clause “protects the writ as it existed in 1789,” St.
Cyr, 533 U.S. at 301 (internal quotation marks omitted), then
it surely allows a prisoner to argue that his transfer violates an
act of Congress.
The majority also suggests an alternative theory that the
Suspension Clause only applies to statutory claims that were
available in 1789. Majority Op. 19 n.10. But St. Cyr itself
involved an alien whose habeas petition sought to block his
removal on the basis of a claim under the Immigration and
Nationality Act of 1952, which roughly paralleled a claim that
Congress first created in the Immigration Act of 1917. St.
Cyr, 533 U.S. at 294. Notwithstanding the twentieth-century
vintage of the asserted statutory right, the Court found that the
claim “could have been answered in 1789 by a common-law
judge with power to issue the writ of habeas corpus,” because
it challenged “the legality of Executive detention.” Id. at 305.
As the St. Cyr Court understood, a prisoner in executive
detention could make any argument that his detention was
6
unlawful, regardless of whether that claim was based on
Magna Carta or the most recent innovation of Parliament. The
majority is correct that Omar is invoking a relatively new
statute to make his claim and that, before the FARR Act,
“[h]abeas corpus [was] held not to be a valid means of inquiry
into the treatment the [prisoner] is anticipated to receive in the
requesting state.” Munaf, 553 U.S. at 685 (quoting M. CHERIF
BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES
LAW AND PRACTICE 921 (5th ed. 2007)). But Omar has a
colorable claim that the FARR Act has overridden that
traditional rule, and the Constitution’s habeas corpus
guarantee entitles him to raise that claim even though it relies
on a recently enacted statute. The historical pedigree of the
asserted due process right in Munaf only mattered because the
existence of a due process right depends on whether the right
is historically rooted.
The majority also attempts to distinguish and limit the
force of St. Cyr by observing that the Court there “addressed
removal of aliens under the immigration laws.” Majority Op.
19 n.10. But St. Cyr did not distinguish between removal of
aliens and other forms of executive detention. Rather, the
Court found support for its approach in a wide range of
precedents beyond the immigration context, including
military detention. See St. Cyr, 533 U.S. at 301-02 (citing
habeas cases brought by prisoners of war, impressed seamen,
slaves, apprentices, asylum inmates, bankrupt debtors, and
criminal defendants, among others). The St. Cyr Court
reasoned that the Suspension Clause entitles prisoners to raise
any statutory claim that a proposed transfer to another country
would be unlawful, see id. at 305, and the majority offers no
support for its contention that this constitutional principle
applies only in immigration cases.
7
I agree with the majority that the Suspension Clause is
not a “one-way ratchet.” Majority Op. 18. Congress can
always repeal statutory rights or create new authority for
detention, thereby limiting the range of habeas claims that
federal prisoners may bring. But that is not what Congress has
done here. It has not repealed section 2242(a), the ground for
Omar’s claim, but has instead sought to limit his ability to
bring his claim in federal court. The majority counters that
there is no real difference between expressly repealing a right
and accomplishing the same end by stripping habeas
jurisdiction. Majority Op. 17 n.8. I disagree. A core premise
of the Suspension Clause is that the form of legislative action
can make a great deal of difference in terms of political
accountability: repealing a right tends to focus the public’s
attention in a way that the lawyerly maneuver of jurisdiction
stripping does not. See, e.g., 1 WILLIAM BLACKSTONE,
COMMENTARIES *136 (explaining that a direct assault on
rights “must at once convey the alarm of tyranny throughout
the whole kingdom,” whereas denying a prisoner access to the
courts “is a less public, a less striking, and therefore a more
dangerous engine of arbitrary government”). In fact, the
Suspension Clause was inspired by Parliament’s use of
jurisdiction stripping to prevent American prisoners from
asserting their statutory and common law rights, see PAUL D.
HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO EMPIRE 251-
53 (2010), and Alexander Hamilton thought that the
Suspension Clause’s limits on jurisdiction stripping so
enhanced the democratic check on wrongful detentions that it
rendered a bill of rights unnecessary, see THE FEDERALIST
No. 84. The Constitution vests in Congress the power to
deprive prisoners of judicially enforceable rights, but
“requires that it be made to say so unmistakably” by either
suspending the writ or repealing the right “so that the people
will understand and the political check can operate.” Henry
M. Hart, Jr., The Power of Congress to Limit the Jurisdiction
8
of Federal Courts: An Exercise in Dialectic, 66 HARV. L.
REV. 1362, 1399 (1953).
Because Congress has neither suspended the writ nor
repealed the statutory basis for Omar’s cause of action, we
must consider the merits of his claim. I would follow the
Supreme Court’s suggestion in Munaf v. Geren that the FARR
Act does not “address[] the transfer of an individual located in
Iraq to the Government of Iraq.” 553 U.S. at 703 n.6. Omar
cannot be “return[ed]” to Iraq for a simple reason: “he is
already there.” Id. The U.S. military arrested him in Iraq, and
he was subsequently convicted in an Iraqi court for violating
Iraqi law. He now seeks to use the FARR Act to prevent the
Iraqi authorities from bringing him to justice, which would
effectively “defeat the criminal jurisdiction of a foreign
sovereign.” Id. at 696. Because there is nothing in the FARR
Act to suggest that Congress could have intended such a
result, I concur in the majority’s judgment.