In a Landmark Ruling, DC Circuit Court Upholds Supreme Court View that War is not a Blank Check

For Immediate Release
February 9, 2007

Contact
Susan Lehman, 212–998–6318 or
Mike Webb, 212–998–6746 or
Aziz Huq, 202–441–9684


IN A LANDMARK RULING, UPHOLDING SUPREME COURT VIEW THAT WAR IS NOT A BLANK CHECK FOR THE ADMINISTRATION TO RESTRICT LIBERTIES, DC CIRCUIT COURT REJECTS U.S. GOVERNMENT ARGUMENT THAT U.S. CITIZENS CAN BE DETAINED WITHOUT JUDICIAL REVIEW

Washington, D.C. – The D.C. Circuit today issued a landmark ruling rejecting the Administration’s authority to detain U.S. citizens without judicial review. The Court rejected the government’s argument, accepted already by one federal district court, that the executive branch can detain a U.S. citizen, and deny him any access to judicial review, provided that it can point to some “international” authority for the detention. 

The case, Omar v. Harvey, involves a U.S. citizen, Shawqi Omar, who was arrested by U.S. personnel at his home in Baghdad in October 2004. After Mr. Omar was arrested, he was taken to a U.S. prison in Baghdad and interrogated while being subjected to electric shocks. He has now been in the physical custody of U.S. officials, rotated through a series of prisons in Iraq, for almost two-and-a-half years. 

The Brennan Center for Justice, together with the MacArthur Center for Justice at Northwestern Law School, filed a habeas corpus petition on Mr. Omar’s behalf in December 2005. 

In February, lawyers learned the government intended to transfer Mr. Omar to the Iraqis for criminal trial.  Fearing that Mr. Omar, a Sunni, would be tortured, they asked for an emergency injunction against the transfer. The government responded by arguing that U.S. courts have no power to hear the cases of U.S. citizens if there is “international” authority for the detention operation. 

Citing U.N. Security Council resolutions authorizing multinational operations in Iraq, the Justice Department claimed that even though Mr. Omar was being held by U.S. personnel, his detention could not be challenged in a U.S. court.”

The D.C. Circuit rejected this argument in no uncertain terms. Explained Judge David Tatel: “In the twenty-first century, the writ continues to protect fundamental rights as the United States confronts the challenge of international terrorism.”

All three judges on the D.C. Circuit panel joined this part of the decision, rejecting the government’s claim that it could detain U.S. citizens without any judicial review. 

“This is a case about whether a U.S. citizen can be cast into a legal black hole, with no means to challenge the basis for his detention,” said Aziz Huq, Director of the Brennan Center’s Liberty and National Security Project, who argued the case before the D.C. Circuit. “The Court today reaffirmed the Supreme Court’s view that war is not a blank check as far a citizen’s liberty is concerned.”

For more information, please contact Susan Lehman (212.998.6318,) Mike Webb, (212.998.6746,) or Aziz Huq (212.992.8632) at the Brennan Center for Justice at NYU Law School.