Omar, Sandra K. v. Harvey, Francis J.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2006 Decided February 9, 2007

No. 06-5126

SANDRA K. OMAR AND
AHMED S. OMAR, AS NEXT FRIENDS OF SHAWQI AHMAD
OMAR,
APPELLEES

v.

FRANCIS J. HARVEY, SECRETARY OF THE UNITED STATES
ARMY, ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 05cv02374)

Gregory G. Garre, Deputy Solicitor General, U.S.
Department of Justice, argued the cause for appellants. With
him on the briefs were Peter D. Keisler, Assistant Attorney
General, Kenneth L. Wainstein, U.S. Attorney at the time the
brief was filed, Gregory G. Katsas, Deputy Assistant Attorney
General, David B. Salmons, Assistant to Solicitor General,
Douglas Letter and Jonathan H. Levy, Attorneys. Steve
 2

Frank, Attorney, U.S. Department of Justice, entered an
appearance.

Aziz Z. Huq argued the cause for appellees. With him on
the brief were Susan L. Burke, Heather L. Allred, Joseph
Margulies, and Jonathan L. Hafetz.

Before: TATEL and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion dissenting in part filed by Circuit Judge BROWN.

TATEL, Circuit Judge: In this case we have before us a
petition for a writ of habeas corpus filed on behalf of Shawqi
Ahmad Omar, an American citizen captured and detained in
Iraq by United States military forces operating as part of the
Multi-National Force–Iraq. Omar has been held under the
control of United States forces for over two years, allegedly
without legal process and with no meaningful access to
counsel. When the district court learned of Omar’s imminent
transfer to Iraqi authorities for trial on terrorism charges, it
issued a preliminary injunction barring transfer in order to
preserve its jurisdiction to entertain the habeas petition. The
government appeals, arguing that the district court lacks
jurisdiction to entertain the petition and that, in any event, it
had no authority to enter the preliminary injunction because
Omar’s transfer to Iraqi authorities would afford him all the
relief he seeks, i.e., release from U.S. custody. For the
reasons set forth in this opinion, we affirm.
 3

I.

In late October 2004, United States military forces
operating in Iraq arrested appellee Shawqi Ahmad Omar, a
dual American/Jordanian citizen, at his Baghdad home. Born
in Kuwait, Omar became a naturalized American citizen
following his marriage to the former Sandra Kay Sulzle.
According to Omar, after the overthrow of the Saddam
Hussein government, he traveled to Iraq seeking
reconstruction-related work and would have left by November
2004 but for his arrest and detention.

The government paints a very different picture of Omar’s
presence in Iraq. According to the government, U.S. military
forces, operating in Iraq pursuant to U.N. Security Council
Resolutions 1546 (2003) and 1637 (2004) as part of the Multi-
National Force–Iraq (MNF-I), captured Omar during a raid on
associates of Abu Musab al-Zarqawi. The government
believes that Omar was part of Zarqawi’s network and that he
facilitated terrorist activities both in and outside of Iraq. The
government alleges that four Jordanian foreign fighters and an
Iraqi insurgent were captured along with Omar, and that
weapons and improvised explosive device making materials
were found in his home.

Following Omar’s arrest, an MNF-I panel of three
American military officers conducted a hearing to resolve his
status. According to the government, the process employed
by the panel exceeded the requirements of Article 5 of the
Third Geneva Convention. The record, however, reveals little
about the panel’s operation. We know only that the panel
permitted Omar to see the evidence against him, to make a
statement, and to call “immediately available” witnesses.
Declaration of John D. Gardner, Deputy Commanding
General for Detainee Operations, Multi-National Force–Iraq,
 4

at 3-4 (Feb. 7, 2006), reprinted in Joint Appendix 138-39
(hereinafter “Gardner Decl.”). After the hearing, the panel
declared Omar to be a “security internee under the law of
war” and an “‘enemy combatant’ in the war on terrorism.”
Appellants’ Br. 9. The panel also found that Omar was not a
prisoner of war for purposes of the Third Geneva Convention.
Since the panel’s decision, American MNF-I officials have
held Omar at various detention facilities in Iraq. According to
Omar, the military has transferred him between Camp
Cropper, the Abu Ghraib prison, and Camp Bucca. Omar has
been in custody for over two years without formal charges
and, he alleges, without access to counsel.

In August 2005, the MNF-I decided to refer Omar to the
Central Criminal Court of Iraq (CCCI) for trial. The record
indicates neither who made this decision nor what procedures
were followed. The CCCI, a Baghdad-based Iraqi court, has
national jurisdiction over an array of criminal offenses,
including terrorism. According to the government, during the
CCCI investigation and trial phases, the MNF-I maintains
physical custody of detainees like Omar, turning them over to
the Iraqi Ministry of Justice only after conviction.

On December 12, 2005, Omar’s wife, Sandra, and son,
Ahmed, filed a petition for a writ of habeas corpus as Omar’s
next friends. Brought in the United States District Court for
the District of Columbia, the petition names as respondents
Francis J. Harvey, Secretary of the Army; Major General
William H. Brandenburg, then-Deputy Commanding General
of Detainee Operations and Commanding General of Task
Force 134, MNF-I; and Lieutenant Colonel Timothy Houser
of the 105th Military Police Battalion, commanding officer at
Camp Bucca. The petition asserts that Omar’s detention by
the United States military violates numerous constitutional
provisions, chief among them the right to due process
 5

guaranteed by the Fifth Amendment. The petition asks the
district court to “[i]ssue a Writ of Habeas Corpus requiring
Respondents to release Shawqi Omar from detention, and/or
requiring Respondents to bring Shawqi Ahmad Omar before a
court of competent jurisdiction in the United States to show
just cause for his continued detention.” Habeas Pet. at 17.
Also alleging that “the United States military may turn Mr.
Omar over to the custody of Iraqi authorities in an effort to
evade the strictures of United States law,” id. at 12-13, the
petition asks the district court to “[e]njoin Respondents from
transferring Mr. Omar to the authority of any other
government, sovereign, country, or agency until [the district
court] has an opportunity to consider and decide the merits of
this Petition.” Id. at 17.

Approximately two months after filing the petition,
Omar’s attorney received an e-mail from the Department of
Justice informing her of the MNF-I’s earlier decision to refer
Omar to the CCCI. Believing that CCCI proceedings could
interrupt American custody of Omar, thereby stripping the
district court of jurisdiction, that transfer would amount to an
illegal extradition, and that Omar would likely face torture by
Iraqi authorities, the attorney sought and received an ex parte
temporary restraining order requiring that Omar “not be
removed from United States custody.” Order Granting the Ex
Parte Motion for a TRO at 2.

In a memorandum filed shortly after entry of the TRO,
the government challenged the district court’s jurisdiction to
entertain the petition. The government relied principally on
Hirota v. MacArthur, 338 U.S. 197 (1948), in which the
Supreme Court held that World War II Japanese officials
could not invoke habeas to challenge their conviction by a
multinational military tribunal. The government also argued
that the district court had no authority to issue injunctive relief
 6

because doing so would “inject [the court] into an exclusive
Executive function” and because adjudication of Omar’s
potential referral to the CCCI “raises non-justiciable political
questions.” Resp’ts’ Opp’n to Pet’rs’ Ex Parte Mot. for a
TRO at 22, 25.

Following briefing, the district court converted the TRO
into a preliminary injunction ordering that “the respondents . .
. and any persons acting in concert or participation with them,
or having actual or implicit knowledge of this Order . . . shall
not remove [Omar] from United States or MNF-I custody, or
take any other action inconsistent with this court’s
memorandum opinion.” Order Granting the Mot. for a
Prelim. Inj. (hereinafter “Prelim. Inj. Order”). In the
accompanying memorandum opinion, the court explained that
the jurisdictional issues in the case presented questions “so
serious, substantial, difficult and doubtful, as to make them
fair ground for litigation and thus for more deliberative
investigation.” Omar v. Harvey, 416 F. Supp. 2d 19, 23-24
(D.D.C. 2006) (internal quotation marks omitted) (quoting
Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,
559 F.2d 841, 844 (D.C. Cir. 1977)). Fearing imminent
referral to the CCCI would forever preclude a more
deliberative investigation of the weighty jurisdictional
questions, the court issued the injunction to freeze the status
quo. In doing so, the court credited Omar’s contention that
transfer could irreparably deprive him of this investigation by
“undo[ing the] court’s jurisdiction.” Id. at 28. This, the court
concluded, “would abuse the process now put in place for the
purpose of adjudicating matters on their merits.” Id.

The government appeals, arguing (as it did in the district
court) that Hirota controls and that Omar’s challenge presents
non-justiciable political questions. The government also
argues that even if the district court does have jurisdiction, its
 7

injunction was improper because, by prohibiting Omar’s
removal from American or MNF-I custody, it bars the
government from providing Omar “all of the relief to which
he is entitled through a writ of habeas corpus.” Appellants’
Br. 20. We consider each issue in turn.

II.

The “great writ” of habeas corpus, as Blackstone called
it, has for centuries functioned as the “symbol and guardian of
individual liberty.” Peyton v. Rowe, 391 U.S. 54, 58 (1968).
By the seventeenth century, the writ had become “the highest
remedy in law, for any man that is imprisoned.” WILLIAM F.
DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 46-
49 (1980) (internal quotation marks and citation omitted). In
the eighteenth century, it was the only common law writ
expressly mentioned in the United States Constitution. See
U.S. CONST. art. I, § 9, cl. 2; Hamdi v. Rumsfeld, 542 U.S.
507, 558 (2004) (Scalia, J., dissenting). And now, in the
twenty-first century, the writ continues to protect fundamental
rights as the United States confronts the challenge of
international terrorism. Indeed, since September 11, the
Supreme Court has considered habeas petitions filed on behalf
of at least three accused terrorists, confirming “the federal
courts’ power to review applications for habeas relief in a
wide variety of cases involving executive detention, in
wartime as well as in times of peace.” Rasul v. Bush, 542
U.S. 466, 474 (2004); see also Hamdan v. Rumsfeld, 548 U.S.
___, 126 S. Ct. 2749 (2006) (entertaining habeas petition of
alien detained at Guantanamo Bay, Cuba); Hamdi, 542 U.S.
507 (plurality opinion) (entertaining habeas petition of
American citizen detained within the United States).

Notwithstanding the writ’s long and celebrated history,
the government argues that the district court lacks jurisdiction
 8

to consider Omar’s petition. Although acknowledging both
that U.S. military officials are holding Omar, Appellants’ Br.
15, and that those officials operate “subject to” no
independent MNF-I authority, Oral Arg. Tr. 11, the
government contends that federal courts lack jurisdiction to
entertain habeas corpus petitions filed by individuals detained
by American military officials operating as part of a
multinational force. In support, the government relies
primarily on Hirota, in which the Supreme Court ruled that
the courts of the United States had no jurisdiction to entertain
habeas petitions filed by Japanese citizens convicted and
sentenced by an American-led international military tribunal
in Japan “set up by General MacArthur as the agent of the
Allied Powers.” 338 U.S. at 198. From Hirota, the
government draws the general principle that federal courts
lack habeas jurisdiction over individuals held by “United
States military personnel under the auspices of a multinational
force that is distinct from the United States military and
ultimately derives its existence from an international body.”
Appellants’ Br. 32. Applying that principle to this case and
pointing out that Omar, like the Hirota petitioners, is in the
custody of American officials acting as part of a multinational
force, the government argues that Hirota “compels the
dismissal of this habeas petition.” Appellants’ Br. 25.

Omar disagrees. Pointing out that the Hirota petitioners
filed directly in the Supreme Court, he argues that “Hirota’s
holding concerns the scope of Supreme Court jurisdiction
under Article III of the Constitution.” Appellees’ Br. 29. Yet
just six months after Hirota, in Flick v. Johnson, 174 F.2d 983
(D.C. Cir. 1949), we applied Hirota to a habeas corpus
petition filed not in the Supreme Court, but in the district
court by an individual who, like the Hirota petitioners, had
been convicted by an international tribunal. In this circuit,
 9

then, Hirota applies to habeas proceedings in the district
court.

Omar also argues that Hirota “lacks vitality today” given
that the Supreme Court has since “clarified the broad
availability of habeas corpus.” Appellees’ Br. 23-24. In
support, Omar cites Madsen v. Kinsella, 343 U.S. 341 (1952),
and United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
In both of those cases, however, the habeas petitioners had
been convicted not by multinational tribunals, but rather by
American tribunals sitting in foreign countries, i.e., Germany
(Madsen) and Korea (Toth). Thus, neither case has anything
to do with the issue the Supreme Court faced in Hirota. Omar
also relies on Hamdi, 542 U.S. 507, and Rasul, 542 U.S. 466.
Although we share Omar’s view that these decisions provide a
basis for questioning Hirota’s vitality, the Supreme Court has
never revisited the precise issue it confronted there, namely
the availability of habeas to non-citizens convicted abroad by
multinational tribunals. As the Supreme Court has cautioned,
“[i]f a precedent of [the Supreme] Court has direct application
in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989).

That said—and setting aside Omar’s suggestion that
Hirota is distinguishable because the MNF-I may not be as
authentically multinational as the Allied Forces in Japan—we
agree with Omar that Hirota is not nearly as broad as the
government insists. A nine-sentence per curiam opinion,
Hirota reads—in its entirety—as follows:
 10

The petitioners, all residents and citizens of
Japan, are being held in custody pursuant to the
judgment of a military tribunal in Japan. Two
of the petitioners have been sentenced to death,
the others to terms of imprisonment. They
filed motions in this Court for leave to file
petitions for habeas corpus. We set all the
motions for hearing on the question of our
power to grant the relief prayed and that issue
has now been fully presented and argued.

We are satisfied that the tribunal
sentencing these petitioners is not a tribunal of
the United States. The United States and other
allied countries conquered and now occupy and
control Japan. General Douglas MacArthur
has been selected and is acting as the Supreme
Commander for the Allied Powers. The
military tribunal sentencing these petitioners
has been set up by General MacArthur as the
agent of the Allied Powers.

Under the foregoing circumstances the
courts of the United States have no power or
authority to review, to affirm, set aside or
annul the judgments and sentences imposed on
these petitioners and for this reason the
motions for leave to file petitions for writs of
habeas corpus are denied.

338 U.S. at 198. As is apparent, Hirota nowhere explains
which “circumstances” were controlling. Nor does anything
in the opinion hold that federal courts lack habeas jurisdiction
whenever, as the government insists, American officials
detaining a petitioner are functioning as part of a
 11

multinational force. Indeed, the opinion articulates no general
legal principle at all. The Court, moreover, has never cited
Hirota for any substantive proposition, much less the one the
government claims it supports. None of this should be
surprising given that the Court heard Hirota not on a petition
for certiorari granted to resolve an important question of law,
see SUP. CT. R. 38(5) (1939) (“A review on writ of certiorari .
. . will be granted only where there are special and important
reasons therefor.”), but rather as an original petition for
habeas corpus. This, together with the terse per curiam
opinion, reveals a Court determined to resolve the case on the
narrowest possible grounds.

We thus take the Court at its word: it lacked habeas
jurisdiction because of the “circumstances” of the case. As a
matter of precedent, then, Hirota would “control” this case
only if the “circumstances” significant to the Court’s decision
are present here. Two circumstances are clearly the same:
detention overseas and the existence of a multinational force.
But two other circumstances—foreign citizenship and
criminal conviction—are absent. Were we writing on a clean
slate, we would thus have to determine which of these
circumstances influenced the Court’s decision.

But our slate is not clean. In Flick, we considered a
habeas petition filed by a German citizen held by American
troops in Germany pursuant to his conviction by an entity
known as the Military Tribunal IV. 174 F.2d 983. Given
Hirota, we asked: “Was the court which tried and sentenced
Flick a tribunal of the United States?” Id. at 984. “If it was
not,” we explained, then under Hirota, “no court of this
country has power or authority to review, affirm, set aside or
annul the judgment and sentence imposed on Flick.” Id.
Concluding that the Military Tribunal IV was not, in fact, an
American tribunal, we dismissed the petition.
 12

Flick thus holds that the critical factor in Hirota was the
petitioners’ convictions by an international tribunal, and for
good reason. Throughout its brief opinion, the Hirota Court
repeatedly referred to the petitioners’ sentences, including
imprisonment and death, concluding it lacked habeas
jurisdiction “to review, to affirm, set aside or annul the
judgments and sentences imposed on these petitioners.”
Hirota, 338 U.S. at 198. Such language demonstrates that the
Court’s primary concern was that the petitions represented a
collateral attack on the final judgment of an international
tribunal.

Viewed in this light, Hirota does not control this case.
Unlike the Hirota and Flick petitioners, Omar has not been
charged with a crime related to the allegations now lodged
against him, much less convicted of one. Omar seeks not to
collaterally attack a final international conviction, but only to
test the lawfulness of his extrajudicial detention in Iraq, where
he has remained in the control of U.S. forces for over two
years without legal process. True, a panel of three military
officers found him to be a “security internee” and an “enemy
combatant,” but those determinations, based as they are on
military considerations, are a far cry from trial, judgment, and
sentencing. See Hamdi, 542 U.S. at 518-19 (discussing
enemy combatant status); Major General George R. Fay, AR
15-6 Investigation of the Abu Ghraib Detention Facility and
205th Military Intelligence Brigade 12 (Aug. 23, 2004),
available at http://www.defenselink.mil/news/
Aug2004/d20040825fay.pdf (describing military definition of
security internees as “[c]ivilians interned during conflict or
occupation for their own protection or because they pose a
threat to the security of coalition forces, or its mission, or are
of intelligence value”). Habeas proceedings here run no risk,
as they did in both Hirota and Flick, of judicial second-
 13

guessing of an international tribunal’s final determination of
guilt.

The fact that Omar has never been convicted of criminal
activity thus distinguishes this case from both Hirota and
Flick, and rightly so, given that challenging extrajudicial
detention is among the most fundamental purposes of habeas.
“At its historical core,” the Supreme Court has explained, “the
writ of habeas corpus has served as a means of reviewing the
legality of Executive detention, and it is in that context that its
protections have been strongest.” INS v. St. Cyr, 533 U.S.
289, 301 (2001); see also Brown v. Allen, 344 U.S. 443, 533
(1953) (Jackson, J., concurring in the judgment) (“The
historic purpose of the writ has been to relieve detention by
executive authorities without judicial trial.”). Acting in
tandem with its partners-in-liberty—the Due Process Clauses
of the Fifth and Fourteenth Amendments—the great writ is
“the instrument by which due process [can] be insisted upon
by a citizen illegally imprisoned.” Hamdi, 542 U.S. at 555-56
(Scalia, J., dissenting). Where, as in Hirota and Flick,
individuals have been convicted and sentenced by a criminal
tribunal, some form of judicial process has occurred, reducing
the risk of unlawful extrajudicial detention. But where, as
here, the Executive detains an individual without trial, the risk
of unlawful incarceration is at its apex.

In addition to Hirota, the government cites cases holding
that federal courts may not grant habeas relief to Americans
held by foreign governments, see, e.g., United States ex rel.
Keefe v. Dulles, 222 F.2d 390 (D.C. Cir. 1954), and that
habeas is unavailable to Americans held in U.S. custody
pursuant to a foreign conviction, see, e.g., Bishop v. Reno, 210
F.3d 1295 (11th Cir. 2000). Such propositions, however, have
nothing to do with this case since Omar is neither detained nor
convicted by a foreign nation.
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With Hirota and the other cases the government cites
thus distinguished, Omar’s petition fits comfortably within the
terms of the modern habeas statute—a proposition the
government nowhere contests. Under 28 U.S.C. § 2241,
federal courts have authority to issue the writ “within their
respective jurisdictions” to prisoners “in custody under or by
color of the authority of the United States.” 28 U.S.C.
§ 2241(a), (c)(1). Omar’s petition satisfies both requirements.
First, the petition is “within the jurisdiction” of the district
court because respondents, the Secretary of the Army and two
high-ranking Army officers, are amenable to service in the
District of Columbia. See Rasul, 542 U.S. at 478-79 (“[A]
district court acts within [its] respective jurisdiction within the
meaning of § 2241 as long as the custodian can be reached by
service of process.” (second alteration in original) (internal
quotation marks omitted)). Second, although American
personnel in Iraq operate as part of the MNF-I, the
government concedes that Omar is “held” by U.S. forces,
Appellants’ Br. 15, and that those forces operate “subject to”
no independent MNF-I authority, Oral Arg. Tr. 11. Omar is
thus “in custody under or by color of the authority of the
United States.” As a consequence, the district court has
jurisdiction to entertain Omar’s habeas petition.

III.

The government next argues that the district court lacked
jurisdiction to enter the preliminary injunction because this
case “raise[s] quintessential political questions beyond the
authority or competence of the judiciary to answer.”
Appellants’ Br. 41. The political question doctrine puts
beyond judicial cognizance “political decisions that are by
their nature committed to the political branches.” Schneider
v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal
quotation mark omitted). For example, and relevant to this
 15

case, the doctrine bars courts from considering claims whose
adjudication would require judicial wading into foreign policy
or military waters. Thus, in Schneider we invoked the
political question doctrine to dismiss a claim that would have
required us to second-guess U.S. policy towards Chile. Id. at
197-98. Similarly, in Bancoult v. McNamara, 445 F.3d 427,
436-37 (D.C. Cir. 2006), we dismissed a complaint that would
have required us to review the manner in which the United
States established a military base in the Indian Ocean. Here,
the government argues that Omar’s petition would likewise
require the court to interfere with the “Executive’s textual
constitutional authority to implement foreign policy and
military functions for the purpose of protecting national
security.” Appellants’ Br. 43.

As the political question doctrine is one “of ‘political
questions,’ not one of ‘political cases,’” Baker v. Carr, 369
U.S. 186, 217 (1962), we must focus on Omar’s specific
claims. First, he challenges his detention, claiming that U.S.
military officials are holding him in violation of the
Constitution, federal law, Army regulations, and international
law. Critically for present purposes, Omar alleges that he is
held in violation of the Due Process Clause of the Fifth
Amendment because his “arrest and arbitrary, indefinite
detention without process . . . violates . . . [his] ‘interest in
being free from physical detention by one’s own
government.’” Habeas Pet. at 13 (quoting Hamdi, 542 U.S. at
529). Second, he challenges his transfer, arguing both that the
military lacks treaty or statutory authorization to transfer him
to Iraqi authorities and that the U.S. Constitution forbids
transfer to a government likely to torture him.

The Supreme Court’s recent decision in Hamdi makes
abundantly clear that Omar’s challenge to his detention is
justiciable. In Hamdi, as here, the petitioner challenged his
 16

detention by U.S. military authorities pursuant to an “enemy
combatant” determination. Although the government never
directly invoked the political question doctrine, it argued that
separation of powers concerns—the very concerns underlying
the political question doctrine—preclude courts from
inquiring into the factual basis of an enemy combatant
designation. “A commander’s wartime determination that an
individual is an enemy combatant,” the government urged, “is
a quintessentially military judgment representing a core
exercise of the Commander-in-Chief authority.” Br. for the
Resp’ts at 25, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No.
03-6696). Unequivocally rejecting this contention, the Hamdi
plurality explained that “it does not infringe on the core role
of the military for the courts to exercise their own time-
honored and constitutionally mandated roles of reviewing and
resolving claims like those presented here.” Hamdi, 542 U.S.
at 535.

Omar’s challenge to his transfer is equally justiciable. He
argues (1) that the military may not transfer him to Iraqi
authorities without treaty or statutory authorization, and (2)
that the military lacks such authorization. In the extradition
context, of course, treaty or statutory authorization has long
been required, Valentine v. United States ex rel. Neidecker,
299 U.S. 5, 8 (1936) (“[A]lbeit a national power, [authority to
extradite] is not confided to the Executive in the absence of
treaty or legislative provision.”), and we have some reason to
believe this rule applies beyond the extradition context, see
Wilson v. Girard, 354 U.S. 524, 528-30 (1957) (per curiam)
(permitting in-country transfer of American service member
to Japanese custody after noting that an agreement authorized
by a treaty provided for transfer).

Our decisions in Holmes v. Laird, 459 F.2d 1211 (D.C.
Cir. 1972), and in countless other cases make clear that courts
 17

may determine whether the Executive possesses the necessary
authority for transfer—the second of the two questions Omar
raises. In Holmes, American soldiers convicted by a German
court of attempted rape escaped U.S. military custody,
returned to the United States, and then sought to prevent the
military from transferring them to German custody. Id. at
1214. In support, they argued (among other things) that they
were “surrenderable only pursuant to the terms of an
extradition treaty.” Id. at 1219 n.59. Although ultimately
rejecting the petitioners’ authorization claim, we first satisfied
ourselves that a valid treaty in fact authorized the transfers.
Id.; see also Neidecker, 299 U.S. at 18 (denying extradition
after determining that “the treaty with France fails to grant the
necessary authority”).

The antecedent question—whether Omar’s transfer even
requires treaty or statutory authorization—is also fully
justiciable. On the merits, the government will surely argue
that under Article II of the Constitution, the military needs no
express authority to transfer detainees like Omar. Resolving
this claim will involve difficult questions of constitutional
law—questions which, significantly for our purposes, will
require no judicial intrusion into the exclusive domain of the
political branches. To be sure, a decision on the merits might
well have implications for military and foreign policy, but that
alone hardly makes the issue non-justiciable. For example, in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952), the government’s assertion that wartime seizure of
steel mills was “necessary to avert a national catastrophe
which would inevitably result from a stoppage of steel
production,” id. at 582, failed to prevent the Supreme Court
from deciding whether the President may seize private
property without congressional authorization. Likewise, in
United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936), the Court, despite the obvious implications for U.S.
 18

foreign policy, decided whether the President could
constitutionally issue export controls on munitions absent
specific statutory authorization. In each of these cases, the
Court resolved a fundamental question of Executive authority
without making any foreign policy or military judgments of
its own. This case, like Youngstown and Curtiss-Wright and
unlike Schneider and Bancoult, supra, presents constitutional
issues that courts can resolve without making any judgments
about foreign policy or the war in Iraq.

Finally, the “rule of non-inquiry,” which bars courts from
“investigating the fairness of a requesting nation’s justice
system,” In re Extradition of Howard, 996 F.2d 1320, 1329
(1st Cir. 1993), does not require a different result. According
to the government, Omar’s allegation that he faces torture at
the hands of the Iraqis is precisely the type of claim the rule of
non-inquiry bars courts from considering. This may be
correct. See, e.g., In re Extradition of Manzi, 888 F.2d 204,
205-06 (1st Cir. 1989) (permitting extradition to Italy and
refusing to allow evidence on the petitioner’s claim that his
life would be threatened by the transfer). But see Gallina v.
Fraser, 278 F.2d 77, 79 (2d Cir. 1960) (suggesting in dicta
that there may one day arise a transfer so “antipathetic to a
federal court’s sense of decency as to require reexamination
of” the rule of non-inquiry). But since the only question
before us at this stage of the litigation relates to the district
court’s jurisdiction, and given our earlier conclusion that the
political question doctrine presents no jurisdictional bar to
Omar’s challenge to his detention and transfer, we need not
address his torture claims. The rule of non-inquiry therefore
has no relevance to our disposition of the matter before us at
this stage of the litigation.
 19

IV.

Having established that the district court has jurisdiction,
we turn to the propriety of the preliminary injunction.
Applying the standard four-factor analysis, see Mova Pharm.
Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998)
(listing requirements for preliminary injunctions), the district
court enjoined Omar’s removal from American or MNF-I
custody in order to preserve its jurisdiction to address the
case’s “serious, substantial, difficult, and doubtful” issues.
416 F. Supp. 2d at 28 (internal quotation marks omitted)
(quoting Holiday Tours, 559 F.2d at 844).

The government challenges the injunction, claiming that
the district court improperly barred Omar’s outright release
even though such release is precisely what his “petition
ultimately seeks.” Appellants’ Br. 57. The injunction, in
relevant part, orders that the respondents “shall not remove
the petitioner from United States or MNF-I custody.” Prelim.
Inj. Order (emphasis added). Although “remove” could
include outright release, given the circumstances of this case,
we interpret the word differently. Omar did not seek an
injunction barring his outright release, nor could he have; he
sought an injunction prohibiting his transfer to Iraqi
authorities in order to preserve the district court’s jurisdiction
to entertain his habeas petition. We thus understand the court
to have used the word “remove” to prevent Omar’s transfer in
any form, whether by an official handoff or otherwise.
Viewed this way, the injunction does not bar a bona fide
release of Omar, even if the military releases him inside Iraq.

The government’s primary challenge to the injunction
(other than the jurisdictional arguments we have rejected in
parts II and III), is its claim that transfer to Iraqi authorities
constitutes release from American/MNF-I custody—“all of
 20

the relief to which [Omar] is entitled through a writ of habeas
corpus.” Appellants’ Br. 20. The government asserts that
transfer is release because transfer “would end his detention
by the MNF-I, which is the sole arguable basis for the district
court’s jurisdiction.” Appellants’ Br. 58. In other words, the
government sees transfer as a subset of release; one can be
“released” either by being let go into the open, or by being
transferred to a different authority.

There is, however, an obvious and quite significant
difference between transferring Omar to Iraqi authorities and
releasing him to walk free from his current detention. If
transferred, Omar would remain in custody and detention; if
released he might not. Indeed, were the government correct,
federal courts would have no authority to stay an extradition
long enough to test its validity since transfer to the foreign
authority would, as the government sees it, be the same as
release. Yet courts routinely stay extraditions, see, e.g.,
Ntakirutimana v. Reno, 184 F.3d 419, 423 n.7 (5th Cir. 1999)
(stay of extradition pending appeal); Then v. Melendez, 92
F.3d 851, 853 n.1 (9th Cir. 1996) (same), and for good reason:
transferring a petitioner to the foreign country seeking
extradition is obviously not the same as releasing him.

To be sure, as the government argues, Iraqi authorities
might arrest Omar the moment U.S. forces release him.
Expanding on this point, the dissent speculates that “if the
government simply releases Omar and allows him to walk out
of Camp Bucca, he might well find a dozen armed Iraqi
soldiers waiting for him.” Dissenting Op. at 6. The dissent
also thinks that U.S. military officials could “notify Iraqi
authorities as to the exact time and place of [his] release,
thereby effectively ensuring his immediate recapture and
detention.” Id. As a result, the dissent maintains, Omar has
failed to demonstrate irreparable injury because even if he
 21

prevails at his habeas hearing, he may nonetheless end up in
Iraqi custody. We disagree.

To begin with, such speculation at the appellate level
cannot defeat Omar’s right to a habeas hearing on the
lawfulness of his detention and transfer. See CityFed Fin.
Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.
Cir. 1995) (“We review a district court decision regarding a
preliminary injunction for abuse of discretion . . . .”). At this
point in time, we have no way of knowing how the U.S.
military would release Omar if the district court ultimately
rules in his favor, much less whether and to what extent the
military would communicate with Iraqi authorities. Nor do
we have any idea what would happen to Omar once released.
Perhaps he would end up in Iraqi custody, but perhaps he
would not. For example, perhaps because of developments at
the habeas hearing, such as the appearance of defects in the
government’s case or the introduction of exculpatory
evidence, the Iraqis would decide that Omar is no longer
worth prosecuting. Or perhaps by the time the district court
ordered Omar’s release, Iraqi priorities would have changed,
leaving Iraqi authorities uninterested in allocating scarce
military resources—much less the dissent’s dozen
soldiers—to his arrest. The point is that on the record before
us at this stage of these proceedings, neither the government
nor the dissent nor we can possibly know what would happen
to Omar if the district court barred his transfer and ordered his
release. Given this uncertainty, a preliminary injunction
protecting Omar from the certainty of transfer now is hardly
an “empty gesture.” See Dissenting Op. at 7.

The dissent’s speculation about a U.S. military “tip-off”
to the Iraqis suffers from a second defect. If the district court
ultimately rules that the U.S. military lacks authority to
transfer Omar, the military will be unable to transfer him
 22

either directly through a formal handoff or indirectly by
“releasing” him with a wink-and-a-nod to the Iraqis. The
United States may certainly share information with other
sovereigns, see id. at 6-7, but it may not do so in a way that
converts Omar’s “release” into a transfer that violates a court
order. The district court has jurisdiction to hear Omar’s
habeas petition, see part III supra, and federal courts have
authority to enforce their orders; contrary to the dissent, see
Dissenting Op. at 6, the political question doctrine is not
implicated. In any event, we think it exceedingly unlikely
that American military officers, sworn to uphold the law and
represented by the Justice Department, would evade an order
of a United States district court. Indeed, if the district court
orders Omar’s release, we are confident that military officials
and their lawyers will work in good faith with the district
court to fashion an order that, based on then-existing
circumstances, ensures his lawful release from American
custody.

The government’s observation that “a court may not
artificially prolong a case or controversy by issuing an
injunction the effect of which is to prevent the Government
from rendering the petition moot by granting relief,”
Appellants’ Br. 57, though undoubtedly correct, has nothing
to do with the issue before us. Because the military plans to
transfer Omar to Iraqi authorities, not to release him, the
preliminary injunction, far from “prevent[ing] the
Government from rendering the petition moot by granting
relief,” preserves the district court’s jurisdiction to review the
lawfulness of that transfer.

The government cites Spencer v. Kemna, 523 U.S. 1
(1998), for the proposition that a prisoner’s final release from
prison moots his habeas petition. It also cites a series of
cases, including Yohey v. Collins, 985 F.2d 222 (5th Cir.
 23

1993), for the proposition that conviction moots a pre-trial
habeas petition. Omar, however, has not been released nor
has he been convicted of a crime, so the cited decisions have
no bearing on this case.

Taking a different tack, the dissent believes Omar has
failed to demonstrate likelihood of success on the merits
because “to make an injunction against transfer to Iraqi
authorities a viable form of preliminary relief, Omar would
need to show . . . . [what] we might call ‘release plus,’” i.e.,
“release combined with immunity to Iraqi prosecution, release
following surreptitious transport out of Iraq, or release with a
promise to conceal the time and place of the release.”
Dissenting Op. at 8. Like the dissent’s other arguments, this
argument is wholly speculative, for it assumes, without record
support, that Omar will, once released, require protection
from Iraqi authorities. But as we indicate above, no one
knows at this time what will happen to Omar if the district
court orders his release. Speculating about the conditions
under which the military might release Omar or the
lawfulness of those conditions is thus not only
premature—the matter may never arise—but irrelevant to the
issue before us: whether the district court abused its discretion
in issuing the injunction. In any event, Omar’s petition does
not seek “release plus”; rather, alleging that Omar is being
held by the U.S. military in violation of his constitutional
rights, the petition seeks his release from military custody.

The dissent asserts that “interference by a court in the
decisions of sovereigns acting jointly within the same territory
is unprecedented,” Dissenting Op. at 9-10, citing only Floyd
v. Henderson, 456 F.2d 1117 (5th Cir. 1972), in support. In
Floyd, a federal prisoner argued that the federal government
could no longer exercise jurisdiction over him because the
Attorney General had transferred him to a state prison, where
 24

he served a state sentence concurrently with his federal
sentence. Because a statute, 18 U.S.C. § 4082, authorized the
Attorney General to assign federal prisoners to state prisons,
the court ruled that “[the statutory] authority is sufficient to
permit the transfer of petitioner from one institution to
another prison.” 456 F.2d at 1119. But as we have explained,
whether the military has authority to transfer Omar is one of
the central questions in this habeas litigation. Floyd and the
proposition for which the dissent cites it would thus become
relevant only if the district court rules either that the military
possesses the requisite statutory or treaty authority to transfer
Omar, or that no such authority is necessary.

According to the dissent, “the bar on Omar’s presentation
before the CCCI while in United States custody is improper.”
Dissenting Op. at 5. Although we agree with the dissent that
the injunction prohibits the military from presenting Omar to
the CCCI for trial, we think this an appropriate exercise of the
district court’s discretion. The dissent’s argument hinges on
the assumption, unsupported in the record, that Omar’s
“presentation does not hamper the ability of the government
to order Omar’s release should the district court rule in his
favor.” Id. Although the government has advised us that the
“MNF-I maintains physical custody of detainees while their
cases are being heard by the CCCI,” Gardner Decl. at 6, we
cannot determine from the record whether this means legal
custody. We are thus uncertain whether once Omar is in a
CCCI courtroom, the Iraqi judge could remand him to Iraqi
custody, an action that would obviously defeat the district
court’s habeas jurisdiction. Nor can we determine whether
Omar’s presentation for trial might by itself amount to the
very “transfer” that Omar argues the military lacks authority
to execute. Given these uncertainties and their potential
implications for habeas jurisdiction, the district court, by
 25

enjoining Omar’s presentation for trial, clearly acted within
its discretion.

Pointing out that “American citizenship is not a grant of
immunity to commit crimes in other countries with impunity,”
the dissent thinks our decision has the “remarkable effect of
enabling a court sitting in Washington, D.C., to block the
efforts of a foreign sovereign to make an arrest on its own
soil.” Dissenting Op. at 9. U.S. courts, of course, have no
authority to constrain the actions of Iraqi authorities. But in
this case the government concedes that Omar is in the custody
of United States officials, and Omar’s petition merely calls on
the district court to determine whether those officials are
complying with American law—an altogether unremarkable
action for a United States district court.

V.

In sum, neither Hirota nor the political question doctrine
deprives the district court of jurisdiction to entertain Omar’s
petition for a writ of habeas corpus. Because transfer would
not afford Omar all the relief he could obtain through a writ of
habeas corpus and because the district court’s preliminary
injunction properly preserves its jurisdiction to entertain his
petition, we affirm.

So ordered.
 BROWN, Circuit Judge, dissenting in part: With only minor
hesitation,1 I join the majority’s analysis of the district court’s
jurisdiction over Omar’s habeas petition. But I disagree with the
majority’s view that, while the district court cannot enjoin
Omar’s release outright, it may indeed dictate the terms of his
release. Hence, I write separately to explain why I would vacate
the district court’s injunction.

I

This case reached us when the government appealed the
district court’s Order dated February 13, 2006. The sole
question before us, then, is whether that Order was proper. In
relevant part, it states as follows:

[It is] ORDERED that the motion for a preliminary
injunction is GRANTED, and it is

FURTHER ORDERED that the respondents, their
agents, servants, employees, confederates, and any
persons acting in concert or participation with them, or
having actual or implicit knowledge of this Order by
personal service or otherwise, shall not remove the
petitioner from United States or MNF-I custody, or take
any other action inconsistent with this court’s memoran-
dum opinion.

1
To the extent the majority’s opinion might be read to imply
citizenship was one of the determinative factors in Hirota v.
MacArthur, 338 U.S. 197 (1948), I note the question remains open in
this circuit. Compare Flick v. Johnson, 174 F.2d 983, 984 (D.C. Cir.
1949) (focusing on conviction by a foreign tribunal as the hallmark of
Hirota without discussing citizenship), with Maj. Op. 9 (describing the
issue in Hirota as “the availability of habeas to non-citizens convicted
abroad by multinational tribunals”).
 2

The Motion for a Preliminary Injunction referenced by the Order
was originally styled a Motion for a Temporary Restraining
Order, and it asked the court to prevent “the transfer of Shawqi
Omar to the authority of any other government, sovereign,
country, or agency until this Court has an opportunity to
consider and decide the merits” of Omar’s habeas petition.

The injunction, by its terms, grants the original Motion,
thereby barring Omar’s transfer to different custodians. The
injunction also explicitly instructs the respondents not to
“remove [Omar] from United States or MNF-I custody,” an act
necessary for his release.2 Finally, the discussion in the district
court’s memorandum opinion makes sense only if the court
further intended to proscribe Omar’s presentation before the
Central Criminal Court of Iraq (“CCCI”), even while he
remained in the custody of the United States or MNF-I. The
Order gives effect to this intention by enjoining “any other
action inconsistent with this court’s memorandum opinion.” In
summary, the injunction bars Omar’s transfer to a foreign
custodian, his outright release, and his presentation before the
CCCI while within United States or MNF-I custody.3

2
The majority interprets this instruction as covering transfer but
not release. Maj. Op. 19. Given such an interpretation, it is not clear
why the district court had to “FURTHER ORDER[]” that Omar not be
removed, when the court’s grant of Omar’s Motion for a Preliminary
Injunction already barred his transfer. However, since the majority
finds that an injunction against release was not intended, and I find
that it was intended but improper, we all agree that the United States
is free to release Omar from custody.
3
Indeed, as the government has recognized, the final portion of
this injunction effectively bars Omar’s prosecution by the CCCI, as
well. See Opp’n to Pet’rs’ Emergency Mot. for Injunctive Relief at
18-19, Munaf v. Harvey, No. 06-5324 (D.C. Cir. Oct. 25, 2006)
(“[Omar] has not yet had a trial or even an investigative hearing in the
 3

II

In addressing the propriety of this injunction, I note first
that we heard arguments in this case on the portentous date of
September 11, 2006, precisely five years after the terrorist
attacks that so fundamentally altered this country’s attitude
toward security. No longer could we sit back and consider
ourselves safe from foreign enemies so long as no other nation
wished us harm. The Founders envisioned wars in the paradigm
of the time, with official declarations from heads of states
announcing the beginning and end of hostilities. In today’s
world, by contrast, global alliances of non-state actors can visit
death and destruction on the American homeland without
warning, on a scale equal to that seen in conventional wars. In
such an environment, it would be dangerous folly to deny what
this case involves: the capture of an alleged enemy combatant
by American military personnel operating in a war zone. It is in
this context that we must measure Omar’s likelihood of succeed-
ing in his habeas petition, the harm the injunction imposes on
the respondents, and the interest of the public in the case.4

CCCI due to the district court’s unprecedented injunction in that
case.”).
4
Were this an isolated case, the district court’s cavalier approach
to the difficult questions it presents would be less worrisome. But in
fact several related cases have recently come before this court, with
many more sure to follow. See, e.g., Al-Bandar v. Bush, No. 06-5425,
2006 U.S. App. LEXIS 32239 (D.C. Cir. Dec. 29, 2006) (non-citizen
seeking habeas after conviction in Iraq); Munaf, supra note 3 (U.S.
citizen seeking habeas after conviction in Iraq). The proper contours
of court jurisdiction in such cases remain unclear, as do the rights to
be accorded the petitioners on the merits. In such circumstances, this
court has a duty to provide clear guidance based on the cases
presented for its consideration.
 4

While the test for preliminary injunctions is a flexible
one—a strong showing on the merits may compensate for a
relatively slight showing of irreparable injury—a petitioner must
nonetheless demonstrate “some injury.” CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)
(internal quotation marks omitted) (quoting Population Inst. v.
McPherson, 797 F.2d 1062 app. at 1078 (D.C. Cir. 1986)).
Specifically, we ask whether the petitioner “would suffer
irreparable injury if the injunction is not granted.” Id. at 746.
Thus, if the injunction would not reduce the risk of the feared
injury—whether because the injury would not occur even absent
the injunction or because it would remain equally likely even
with the injunction in place—the injunction should not be
granted. In particular, when the feared injury is the loss of a
remedy the petitioner seeks from the courts, we must determine
whether the action to be enjoined would preclude or impair the
desired relief, and, if so, whether the petitioner is likely to obtain
that relief on the merits.

To state this rule is to demonstrate immediately that the
injunction should be vacated at least to the extent it operates to
bar Omar’s release. Release would provide Omar with all the
relief to which he might be entitled by way of his habeas
petition. While courts do have power to grant equitable habeas
remedies beyond mere release, Omar has demonstrated no
grounds whatsoever for such remedies. Equitable remedies
typically involve either an order to a custodian to ameliorate the
conditions of a petitioner’s detention, e.g., Miller v. Overholser,
206 F.2d 415 (D.C. Cir. 1953), or an order freeing a petitioner
from penalties resulting from conviction that persist beyond the
end of detention, e.g., Carafas v. LaVallee, 391 U.S. 234 (1968).
Release from detention trumps ameliorated detention, and Omar
has pointed to no statutory penalties that would persist after his
release. Cf. Lane v. Williams, 455 U.S. 624, 631-33 (1982)
(limiting the Carafas exception to “civil disabilities” imposed
 5

on former detainees by operation of law). Thus, if Omar
prevails on his habeas petition, he would be released and
nothing more, and release at this early stage of the proceeding
would only accelerate that relief, not impair it. In such circum-
stances, the district court’s action blatantly violates the rule that
injunctions must be “narrowly tailored to remedy the harm
shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d
968, 977 (D.C. Cir. 1990).

Similarly, the bar on Omar’s presentation before the CCCI
while in United States custody is improper. Provided such
presentation does not hamper the ability of the government to
order Omar’s release should the district court rule in his favor,
it presents no impediment to relief Omar might receive. While
it might be argued that conviction by the CCCI would prevent
Omar’s release, the same principles of comity and respect for
foreign sovereigns that preclude judicial scrutiny of foreign
convictions necessarily render invalid attempts to shield citizens
from foreign prosecution in order to preempt such non-
reviewable adjudications. Cf. Hirota v. MacArthur, 338 U.S.
197, 197 (1948); Neely v. Henkel, 180 U.S. 109, 123 (1901).

Omar concedes the district court cannot enjoin his release,
see Appellees’ Br. 47, and his briefs before us barely address the
bar on his presentation before the CCCI. However, Omar
dedicates much more energy to his argument that the remaining
portion of the injunction—the bar on his transfer to a new
custodian—should be enforced. The propriety of this part of the
injunction is unquestionably the closest question before us.

If this portion of the injunction stands by itself, then the
government will be permitted to release Omar, but not to
transfer him to Iraqi control. But just how far may the courts go
in effectuating such an order? Because Omar seeks an
injunction against his transfer to Iraqi authorities, we have to
 6

assume that the United States seeks to transfer him to Iraqi
authorities and that Iraqi authorities seek to gain custody.
Therefore, if the government simply releases Omar and allows
him to walk out of Camp Bucca, he might well find a dozen
armed Iraqi soldiers waiting for him. This possibility becomes
an inevitability if United States military officials notify Iraqi
authorities as to the exact time and place of Omar’s release,
thereby effectively ensuring his immediate recapture and
detention. The majority calls this reasoning speculative, but it
is precisely the sort of consideration of future likelihoods that is
required of a court when it weighs the propriety of preliminary
relief. CityFed, 58 F.3d at 746. In short, the practical effect of
Omar’s release with a tip-off to Iraqi authorities would be
indistinguishable from his formal transfer to those authorities.
Therefore, absent a limitation on intergovernmental
communication, an injunction against transfer will have no
significant effect on the likelihood of Omar’s detention by Iraq
subsequent to his release from United States custody.

But information sharing among sovereigns regarding the
location of persons subject to arrest is a common and desirable
practice, particularly in a situation like that in present-day Iraq,
where the United States military is cooperating with Iraqi
authorities to secure the country. Any judicial order barring this
sort of information sharing in a military zone would clearly
constitute judicial interference in a matter left solely to
Executive discretion and would hence be improper under the
political question doctrine. See Hamdi v. Rumsfeld, 542 U.S.
507, 531 (2004) (plurality opinion) (“Without doubt, our
Constitution recognizes that core strategic matters of warmaking
belong in the hands of those who are best positioned and most
politically accountable for making them.”); cf. Bancoult v.
McNamara, 445 F.3d 427, 436-37 (D.C. Cir. 2006); Schneider
v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005). Thus, the
courts are powerless to enjoin the United States from informing
 7

Iraqi officials about the planned release of Omar, and under
these circumstances, an injunction against outright transfer is an
empty gesture that cannot be sustained. See CityFed, 58 F.3d at
746.

The majority recognizes the practical equivalence between
transferring Omar and “‘releasing’ him with a wink-and-a-nod
to the Iraqis,” Maj. Op. 22, but draws the opposite conclusion.
The majority’s logic proceeds as follows: (1) An injunction
barring transfer is permissible. (2) Unrestricted inter-
governmental communication could convert release into
transfer. (3) Therefore, federal courts must have the power to
limit intergovernmental communication, in order to give effect
to the main injunction against transfer. Summarizing its
position, the majority declares: “The United States may
certainly share information with other sovereigns . . . , but it may
not do so in a way that converts Omar’s ‘release’ into a transfer
that violates a court order.” Id. This is a striking conclusion.
The majority in effect holds that, in the proper circumstance, a
single unelected district court judge can enjoin the United States
military from sharing information with an allied foreign
sovereign in a war zone and may do so with the deliberate
purpose of foiling the efforts of the foreign sovereign to make an
arrest on its own soil, in effect secreting a fugitive to prevent his
capture. The trespass on Executive authority could hardly be
clearer.

III

To obtain injunctive relief, the moving party “must
demonstrate 1) a substantial likelihood of success on the merits,
2) that it would suffer irreparable injury if the injunction is not
granted, 3) that an injunction would not substantially injure
other interested parties, and 4) that the public interest would be
furthered by the injunction.” CityFed, 58 F.3d at 746. The first
 8

two factors clearly favor the government here, and the district
court’s findings in favor of Omar on the remaining two factors
are dubious at best.

With regard to the first factor—Omar’s likelihood of
succeeding on the merits—we must first determine in what
sense he must be likely to succeed. It may be true that he is
likely to succeed on the merits if all he seeks from his habeas
petition is release with no additional protections, but then the
United States would be free to notify Iraqi officials of the time
and place of his release, effectively ensuring Iraqi detention.
Omar’s “success on the merits,” in that case, would be Iraqi
detention, and an injunction against transfer would not be
necessary. Therefore, to make an injunction against transfer to
Iraqi authorities a viable form of preliminary relief, Omar would
need to show some likelihood of obtaining permanent relief
protecting him from Iraqi custody. This remedy we might call
“release plus,” consisting of release combined with immunity to
Iraqi prosecution, release following surreptitious transport out
of Iraq, or release with a promise to conceal the time and place
of the release. But Omar has asserted no legal grounds
justifying such an extraordinary remedy, and even had he done
so, it would be beyond the court’s power to grant. Imposing
such conditions on Omar’s release would substantially interfere
with the Executive’s prerogative, especially in time of war.
Thus, the first factor favors the government.

In an attempt to show that the district court’s bar on Omar’s
transfer to the Iraqi authorities would indeed secure Omar’s
chance at some better outcome on the merits, the majority draws
an analogy between that injunction and garden-variety stays on
extradition. See Maj. Op. 20. As the majority notes,
“transferring a petitioner to the foreign country seeking
extradition is obviously not the same as releasing him.” Id. But
Omar is physically detained in Iraq. Therefore, transfer in this
 9

context is not akin to extradition. Cf. Ntakirutimana v. Reno,
184 F.3d 419 (5th Cir. 1999); Then v. Melendez, 92 F.3d 851
(9th Cir. 1996). Rather, “transfer” here means simply allowing
Iraqi officials to arrest and take custody of a person who was
captured in Iraq and has remained there
continuously—something they undeniably have a right to do.
“A sovereign nation has exclusive jurisdiction to punish offenses
against its laws committed within its borders, unless it expressly
or impliedly consents to surrender its jurisdiction,” Wilson v.
Girard, 354 U.S. 524, 529 (1957),5 and American citizenship is
not a grant of immunity to commit crimes in other countries
with impunity, Neely, 180 U.S. at 123. As noted, the majority’s
holding has the remarkable effect of enabling a court sitting in
Washington, D.C., to block the efforts of a foreign sovereign to
make an arrest on its own soil. Where, as is true here, the
prisoner is physically in the territory of the foreign sovereign
that seeks to make the arrest, release is tantamount to transfer,
and thus the logic underlying stays on extradition does not
apply. The majority’s contrary view is comparable to a court
enjoining state authorities from lodging a detainer with respect
to a prisoner held in federal custody and then requiring the
federal prison officials to release the prisoner in a way that
protects the prisoner from state arrest. Such interference by a

5
To the extent the majority reads Girard as permitting in-country
transfer of an American service member to foreign custody only if a
treaty or similar international agreement provides for the transfer, see
Maj. Op. 16, the majority misreads that opinion. In Girard, the Court
did not describe any treaty or agreement providing for the transfer of
the detainee, and it would be odd to hold that a foreign sovereign
needs the authorization of an international agreement to take custody
of someone detained in its own territory or that the United States
needs such authorization to release the detainee in compliance with the
foreign sovereign’s wishes. Significantly, the Girard Court reversed
an injunction against transfer very much like the one at issue here.
Girard, 354 U.S. at 526, 530.
 10

court in the decisions of sovereigns acting jointly within the
same territory is unprecedented. Cf. Floyd v. Henderson, 456
F.2d 1117, 1119 (5th Cir. 1972) (“[The state prisoner] could not
complain about being returned [from state custody] to federal
prison, because the question of jurisdiction and custody over a
prisoner is one of comity between governments and not a
personal right of the prisoner.”).

The second CityFed factor, the risk of “irreparable injury”
to Omar if the injunction is not granted, likewise favors the
government. Irreparable injury must be measured in terms of
the relief the litigant ultimately seeks, and as outlined above, the
preliminary injunction against transfer does not alter in any way
the likelihood Iraqi authorities will take Omar into custody if he
ultimately prevails on the merits of his petition and gains his
release from United States custody. Thus, the claimed
“irreparable injury” (Iraqi custody) is not different from the
most likely consequence of the relief Omar is pursuing. Only if
Omar is seeking not just release, but release with protection
from Iraqi custody, can he argue transfer to Iraqi authorities
poses a threat of irreparable injury. But as noted, Omar has not
established any legal basis for protection from Iraqi custody.6
It simply defies logic for a court to conclude Omar needs a
preliminary injunction to protect him from the consequences of
the relief he is ultimately seeking. Similarly, while the district
court treated loss of habeas jurisdiction as a second irreparable
injury, this is truly injurious only to the extent the exercise of

6
I do not make light of Omar’s assertion he will receive severe
treatment as a result of Iraqi detention. To recognize that our courts
lack the authority to dictate the actions of a foreign sovereign is not to
sanction human rights violations. As part of a tripartite system of
government, we need not assume the political branches are oblivious
to these concerns. Indeed, the other branches possess significant
diplomatic tools and leverage the judiciary lacks.
 11

jurisdiction might produce relief beyond release into Iraqi
custody, and (once again) no such additional relief could be
warranted.

The third factor queries the injuries other parties might
sustain as a result of the injunction. Here, the substantial
impairment to the Executive’s ability to prosecute the war
efficiently and to make good on its commitments to our allies
cannot be denied. Given the gravity of such impairment in these
troubled times, the third factor places much on the government’s
side of the ledger.

Finally, the fourth CityFed factor asks the district court to
weigh the balance of public interest. The same concerns raised
by the third factor apply here and render suspect a finding that,
in the present environment, the balance of public interest favors
limiting Executive discretion to transfer Omar.

The district court couched its analysis in terms of the
CityFed factors but followed an entirely different path. The
court did not address the merits of Omar’s underlying habeas
claim or discuss what relief would justify each portion of the
injunction. Rather, the court merely determined that it might
have jurisdiction over Omar’s habeas petition and then deemed
this possibility sufficient to satisfy the first CityFed factor.
Omar v. Harvey, 416 F. Supp. 2d 19, 23-28 (D.D.C. 2006).
Addressing the second factor, the court treated its potential loss
of jurisdiction as an irreparable injury without explaining how
its retention of jurisdiction could provide Omar with relief that
would somehow preclude his being taken into Iraqi custody. Id.
at 28-29. Even assuming deference requires us to uphold the
district court’s findings on the final two factors, see CSX
Transp., Inc. v. Williams, 406 F.3d 667, 670 (D.C. Cir. 2005), its
analysis of the first two is clearly erroneous, and its overall
 12

weighing of the CityFed factors represents an abuse of
discretion.

IV

I agree with the majority that the district court has
jurisdiction to entertain Omar’s petition for a writ of habeas
corpus. However, because each part of the district court’s
injunction—the bar on Omar’s release, the bar on his transfer to
a separate custodian, and the bar on his presentation before the
CCCI while he remains in United States or MNF-I custody—is
improper, I would vacate the injunction. Thus, in relation to
however much of the injunction the majority affirms, I must
respectfully dissent.