Munaf v. Geren - Oral Argument - March 25, 2008

Munaf v. Geren

Media for Munaf v. Geren

Audio Transcription for Opinion Announcement - June 12, 2008 in Munaf v. Geren

Audio Transcription for Oral Argument - March 25, 2008 in Munaf v. Geren

John G. Roberts, Jr.:

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.

Gregory G. 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.

David H. 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.

Gregory G. 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.

Ruth Bader 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.

Gregory G. 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--

David H. 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.

Gregory G. 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--

David H. 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.

Gregory G. Garre:

--If I can make--

David H. Souter:

Go ahead.

Gregory G. 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.