Sharon Bradford Franklin [senior counsel,
Constitution Project; amicus in the US Supreme Court in support of habeas petitioners Mohammed Munaf and Shawqi Omar]: "The Supreme Court heard oral argument today in Munaf v. Geren and Geren v. Omar, in which two American citizens being detained by U.S. authorities in Iraq seek judicial review of their detentions through habeas corpus. The United States government argues that the American military personnel detaining Mr. Munaf and Mr. Omar are participating in a multi-national force, and that consequently, United States courts have no jurisdiction to consider the challenges to these detentions.

Arguing on behalf of the government, Deputy Solicitor General Gregory Garre urged that the Court should follow Hirota v. MacArthur, a nine sentence long per curiam decision issued by the Court in 1948. In Hirota, the Court held that United States courts lacked jurisdiction over habeas petitions filed by Japanese nationals who were also held abroad by United States officials acting as part of a multi-national force. He stated that ultimately, the United Nations is in control of the multi-national force in Iraq. In response, Joseph Margulies, argued on behalf of the detainees that unlike the petitioners in Hirota, Mr. Munaf and Mr. Omar are American citizens and they are not seeking to attack the judgments of foreign tribunals. He also pointed out that, as the government concedes, the authorities holding the detainees answer only to an American chain of command.

The Justices' questions focused largely on four different issues in the case: the extent of United States control within the multi-national force; the practicality of a remedy; the importance of American citizenship as a criterion for the availability of habeas review; and the location of the detainees in Iraq — whether or not the prison is within a zone of hostilities. Justices Souter, Ginsburg, and Breyer asked several questions about the reality of United States control over the detainees, despite the fact that U.S. forces are participating in a multi-national force and that the detainees are being held in Iraq. Chief Justice Roberts focused largely on questions about what remedy might be available under habeas. Mr. Omar is currently awaiting trial in the Iraqi court system, and Mr. Munaf had been convicted by an Iraqi court on charges of kidnapping and sentenced to death. Although Mr. Munaf's conviction was recently overturned on appeal in the Iraqi court system, his case is still being reviewed by Iraq. Thus, Chief Justice Roberts questioned whether the traditional habeas remedy of release would be either practical or desirable for these men, since they then would risk being picked up immediately by Iraqi authorities. Justice Kennedy expressed similar concerns.

Justices Stevens, Kennedy, Scalia, and Alito all asked Mr. Margulies about the significance of the fact that Mr. Munaf and Mr. Omar are American citizens and whether, of the 24,000 people being detained abroad by the multi-national force, habeas should only be available for American citizens. Justice Stevens focused particularly on the place of detention, and his view that the entire country of Iraq is part of a zone of active hostilities and thus this case may be different from Hamdi v. Rumsfeld (2004), which involved an American citizen captured on the battlefield but then held within the United States. Mr. Garre stated that the government is not arguing that Mr. Munaf and Mr. Omar are being detained on the battlefield, to which Justice Stevens responded that perhaps the government was failing to make its strongest argument. Justice Breyer, however, noted that in his understanding, the detentions at issue here are more comparable to detentions during a peacetime military occupation."