Shawqi Ahmad Omar is an American citizen who, according to his family, moved to Iraq to help with the reconstruction effort, intending to return to the U.S. in November of 2004. Instead, he was detained by U.S. Forces in October of that year on suspicion of having terrorist connections and has been languishing in U.S. military detention ever since. During that time, he has not been charged with any crime and has had no access to a lawyer. In December 2005, Omar’s family filed a habeas corpus petition in the U.S. District Court for the District of Columbia challenging the legality of his continued detention. His family, on Omar’s behalf, asked that he be allowed a hearing before a federal judge in which the government must either show that it has evidence to keep him locked up or release him.
While Omar’s habeas petition was pending, the U.S. government notified his family that it planned to transfer him into Iraqi custody—and conveniently out of the reach of the U.S. justice system. His family got a preliminary injunction (a type of court order to prevent a party's allegedly wrongful conduct from causing irreparable harm to another party before the case is fully decided) from the district court preventing the government from turning Omar over to the Iraqis before his habeas hearing. The government appealed, arguing that the D.C. Circuit had no jurisdiction to hear Omar’s case because the issue of transferring him to another government was a "political question" and should be left up to the discretion of the executive branch. It further argued that even if the district court had jurisdiction to hear the case, a preliminary injunction barring his transfer to the Iraqis was inappropriate. A divided three-judge panel of the D.C. Circuit rejected those arguments, with Judges David Tatel (Clinton) and Harry Edwards (Carter) voting to affirm the district court’s injunction.
But in an opinion chock full of jingoistic language, Judge Janice Rogers Brown (the controversial Bush II nominee who was confirmed as part of the Gang of 14 compromise) dissented. In her lengthy ode to the executive’s broad power to wage a war on terror—complete with a crude reference to the fact that the oral arguments in the case fell on the fifth anniversary of September 11th—Brown conceded the district court had jurisdiction but accepted the government’s last ditch argument that Omar had not satisfied the test for a preliminary injunction. She concluded that Omar had not shown he would be exposed to irreparable injury in the event the injunction was denied. Although she conceded that Omar would be at risk of being tortured if he were transferred to Iraqi custody (in its 2006 annual report, Human Rights Watch documented the systematic use of torture by Iraqi government forces, including routine beatings, sleep deprivation, electric shocks to sensitive parts of the body, prolonged suspension from the wrists with the hands tied behind the back, deprivation of food and water for prolonged periods, and severely overcrowded cells), she argued that the courts still had no power to interfere with the transfer.
With a startling display of twisted logic, Brown argued that the injunction wrongly protects Omar from the very relief that he seeks. In her view, all Omar is entitled to ask for is to be released from U.S. custody and, if he were successful in obtaining release, the government could simply tell the Iraqi military exactly when and where they planned to "release" Omar so that the Iraqis could immediately re-arrest him. In this way, posited Brown, an injunction from the D.C. Circuit would be an "empty gesture," since "the practical effect of Omar’s release with a tip-off to the Iraqi authorities would be indistinguishable from his formal transfer to those authorities." Brown claimed that if the court ordered the government not to signal Iraqi authorities about a prisoner’s release, "[t]he trespass on Executive authority could hardly be clearer."
Judges Tatel and Edwards also contemplated the “practical equivalence” of “formal transfer” to this type of “wink-and-a-nod” release. But they concluded that “[t]here is…an obvious difference between transferring Omar to the Iraqi authorities and releasing him to walk free from his current detention.” Thus, if the district court ultimately determined that release – and not transfer to Iraqi custody – was warranted, there was no way "American military officers, sworn to uphold the law and represented by the U.S. Justice Department, would evade an order of the district court" by signaling Iraqi authorities. Instead, Tatel and Edwards held that since coordinating “release” with re-arrest by the Iraqis was effectively the same as transferring custody to the Iraqis, the military could do neither so long as the district court ordered them not to .
Brown’s myopic logic conjures visions of a sheriff assembling a mob to meet an acquitted man at the jailhouse door as he is being set free. If the courts are so neutered as to be unable to protect an American citizen from being detained and possibly tortured by a foreign government without first having a hearing in federal court, then we may win the battle, but we have already lost the war.
Omar v. Harvey, No. 06-5126 (D.C. Cir., Feb. 9, 2007).