Geren v. Omar and Munaf v. Geren
Court Cases

– Ongoing

Can the government detain its own citizens and avoid all judicial review simply by donning a blue helmet? That is the question raised by these cases, which will be argued before the Supreme Court on Tuesday, March 25, 2008.

The Brennan Center represents two United States citizens, Shawqi Omar and Mohammad Munaf, who have been detained by the United States in Iraq for more three-plus and two-plus years respectively. The government refuses to justify their detentions in federal court – and argues instead that it has unfettered power to hold them.

Mr. Omar was seized in October 2004 while living in Iraq, where he had moved to find work as a contract worker in construction. He has since been held in Abu Ghraib and other U.S. detention facilities. While he is still being held by American military personnel in Iraq, the U.S. government has said it wishes to transfer Mr. Omar over to Iraqi authorities to be tried in the Central Criminal Court of Iraq (CCC-I).

In mid-March 2005, Mr. Munaf was working as a translator for three Romanian journalists in Iraq. During the trip, both Mr. Munaf and the three journalists were kidnapped by a group identifying themselves as the “Muadh Ibn Jabal Brigade.” Immediately upon their release a few months later, Mr. Munaf was seized by U.S. military officers in Iraq and transferred to Camp Cropper, a U.S. prison in Baghdad, where he has since been held. As the habeas petition on his behalf was being filed, Mr. Munaf was brought by U.S. authorities before an Iraqi court, where he was rapidly convicted and sentenced to death.

The Brennan Center filed habeas corpus petitions on behalf of both Mr. Omar and Mr. Munaf in the District Court for the District of Columbia. In response to the petitions, the government has taken the position that the U.S. government does not need to answer for its detention of a U.S. citizen if it can point to a multinational actor – in this case, the Multinational Force in Iraq – for that detention operation.

In Omar v. Harvey, the District Court and the Court of Appeals rejected the Government’s argument that there is a ‘blue helmet’ exception to judicial review of a U.S. citizen’s executive detention. The District Court granted a preliminary injunction barring Mr. Omar’s transfer to Iraqi authorities in February 2006, which was granted and upheld by the Circuit Court. In fall of 2007, the government filed a petition for certiorari in the Supreme Court, which was granted in December 2007.

In Munaf v. Geren, the District Court dismissed Mr. Munaf’s petition on jurisdictional grounds, contending that U.S. courts have no jurisdiction if a U.S. citizen has been convicted in a foreign court. The Court of Appeals upheld this decision in April of 2007. Counsel for Mr. Munaf filed for certiorari review in the Supreme Court of the United States the following June, which was granted in December 2007 and consolidated with Omar.

Oral arguments for both Mr. Omar and Mr. Munaf’s cases were argued in the Supreme Court on March 25, 2008. For a transcript of the arguments, click here.

Separately, the Brennan Center is pursuing separate relief before United Nations forums.

Susan Burke and Katherine Hawkins at Burke O'Neill, LLC, Eric Freedman, Joseph Margulies of the MacArthur Justice Center at Northwestern University School of Law, and Vincent Moccio and Amy Magid at Robins, Kaplan, Miller & Ciresi, L.L.P., are co-counsel in these cases.