United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2007 Decided April 6, 2007
No. 06-5324
MOHAMMAD MUNAF AND
MAISOON MOHAMMED, AS NEXT FRIEND OF MOHAMMAD
MUNAF,
APPELLANTS
v.
PETE GEREN, ACTING SECRETARY OF THE
U.S. ARMY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01455)
Joseph Margulies argued the cause for appellants. With
him on the briefs were Jonathan L. Hafetz, Aziz Z. Huq, Eric M.
Freedman, and Susan L. Burke.
Gregory G. Garre, Deputy Solicitor General, U.S.
Department of Justice, argued the cause for appellees. With him
on the brief were Peter D. Keisler, Assistant Attorney General,
Jeffrey A. Taylor, U.S. Attorney, David B. Salmons, Assistant to
the Solicitor General, Douglas N. Letter, Litigation Counsel, and
Lewis Yelin, Attorney.
2
Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Opinion filed by Circuit Judge RANDOLPH, concurring in
the judgment.
SENTELLE, Circuit Judge: Mohammad Munaf, an
American citizen, traveled to Iraq in 2005. In October 2006 he
was convicted on kidnapping charges and sentenced to death by
the Central Criminal Court of Iraq (“CCCI”). He is being held,
in Iraq, by United States military personnel serving as part of the
Multi-National Force–Iraq (“MNF-I”). Munaf sought a writ of
habeas corpus in the United States District Court for the District
of Columbia, naming the Secretary of the Army and others as
respondents. Soon after Munaf’s conviction by the Iraqi
criminal court, the district court held that it lacked jurisdiction
and dismissed the petition. Mohammed v. Harvey, 456 F. Supp.
2d 115 (D.D.C. 2006). Munaf appeals. Constrained by
precedent, we hold that the district court does not have the
power or authority to entertain Munaf’s petition and we
therefore affirm.
Our result is required by the Supreme Court’s decision in
Hirota v. MacArthur, 338 U.S. 197 (1948), as that decision has
been applied by this court in Flick v. Johnson, 174 F.2d 983
(D.C. Cir. 1949), and interpreted by Omar v. Harvey, No. 06-
5126 (D.C. Cir. Feb. 9, 2007). In Hirota, Japanese citizens
sought permission to file petitions for writs of habeas corpus
directly in the United States Supreme Court. The petitioners
were held in Japan, where they had been tried by a military
tribunal authorized by General Douglas MacArthur acting as the
Supreme Commander for the occupying Allied Powers. Hirota,
338 U.S. at 198. In a short per curiam opinion the Supreme
3
Court concluded that the sentencing tribunal “[was] not a
tribunal of the United States” and held that “[u]nder 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.” Id.
Flick involved a habeas petition filed in the United States
District Court for the District of Columbia by a German citizen
held in Germany by American forces after he was convicted by
a military tribunal. 174 F.2d 983. Relying on Hirota, we
framed the jurisdictional question as follows: “Was the court
which tried and sentenced Flick a tribunal of the United States?
If it was not, no court of this country has power or authority to
review, affirm, set aside or annul the judgment and sentence
imposed on Flick.” Id. at 984. Finding that the military tribunal
was not a U.S. court, we held that the district court lacked
jurisdiction to review Flick’s habeas petition. Id. at 986.
Our recent decision in Omar involved a habeas petition
filed on behalf of a United States citizen being held in Iraq by
U.S. forces acting as part of the MNF-I. Omar, slip op. at 2. As
in Hirota and Flick, Omar involved detention overseas and a
multinational force. But unlike the petitioners in Hirota and
Flick, Omar had not been charged or convicted by a non-U.S.
court. We distinguished Hirota and Flick on this basis and went
on to hold that the district court had jurisdiction to hear Omar’s
habeas claim. Slip op. at 12-14.
Unlike Omar, the instant case is controlled by Hirota and
Flick. The MNF-I is a multinational force, authorized by the
United Nations Security Council, that operates in Iraq in
coordination with the Iraqi government. The CCCI is an Iraqi
criminal court of nationwide jurisdiction and is administered by
the government of Iraq; it is not a tribunal of the United States.
Accordingly, the district court has no power or authority to hear
4
this case.
Munaf contends that Hirota and Flick do not control
because, like Omar and unlike the petitioners in Hirota and
Flick, Munaf is a United States citizen.1 See, e.g., Johnson v.
Eisentrager, 339 U.S. 763, 769 (1950) (describing citizenship as
“a head of jurisdiction and a ground of protection”). But
Munaf’s citizenship does not take his case out of the ambit of
Hirota and Flick. Hirota did not suggest any distinction
between citizens and noncitizens who were held abroad pursuant
to the judgment of a non-U.S. tribunal. Indeed, Justice Douglas
wrote a separate opinion criticizing the Hirota majority for
seeming to foreclose habeas review even for American citizens
held in such circumstances. See 338 U.S. at 204-05 (Douglas,
J., concurring) (1949). In Omar, we held that “the critical
factor in Hirota was the petitioners’ convictions by an
international tribunal.” Slip op. at 12. We explained that,
because Hirota “articulates no general legal principle at all,” the
decision is controlling as a matter of precedent if the
circumstances important to the Court’s decision are present here.
Id. at 11. As in Hirota, Munaf’s case involves an international
force, detention overseas, and a conviction by a non-U.S. court.
As we noted in Omar, conducting habeas proceedings in the face
of such a conviction risks judicial second-guessing of a non-U.S.
court’s judgments and sentences, and we explained that Hirota’s
repeated references to the petitioners’ sentences “demonstrate[]
that the Court’s primary concern was that the petitions
represented a collateral attack on the final judgment of an
international tribunal.” Id. at 12-13. Whether a habeas petition
represents a collateral attack on a conviction by a non-U.S. court
is not dependent on the petitioner’s citizenship. In light of the
precedent established by Hirota, specifically as interpreted in
1
Munaf was born in Iraq and was naturalized as a United
States citizen in 2000.
5
Flick and Omar, American citizenship cannot displace the fact
of a criminal conviction in a non-United States court and permit
the district court to exercise jurisdiction over Munaf’s habeas
petition.
Munaf also argues that he does not challenge his conviction
by the Iraqi court but rather the lawfulness of his detention at the
hands of United States military personnel. As with Munaf’s
citizenship argument, we do not think that Hirota and Flick can
be distinguished on this ground. In Hirota and Flick, as in this
case, U.S. forces who were operating as part of a multinational
force detained the petitioners. And as in those cases, continued
confinement is dependent on a conviction by a court not of the
United States – specifically, a multinational tribunal in Hirota
and Flick and, in this case, the CCCI, which is a foreign tribunal.
The fact that the MNF-I is not an arm of the Iraqi government
but rather cooperates with Iraq and its courts in matters of
detention does not bring this case outside the scope of Hirota.
Munaf states in his brief that “[e]ven if the Iraqi charges were
dismissed tomorrow the United States does not suggest [Munaf]
would be released.” But the district court’s jurisdiction to
inquire into such matters is precisely the issue; if the charges
were dismissed, and United States forces were to continue to
hold Munaf, this would be a different case. Under Omar the
district court arguably would have jurisdiction over Munaf’s
habeas claim.2 See Omar, slip op. at 14.
* * *
One final point deserves emphasis. In holding that the
district court lacks jurisdiction, we do not mean to suggest that
2
Munaf’s conviction was automatically appealed to the Iraqi
Court of Cassation. At oral argument, Munaf’s counsel stated that the
status of that appeal is unclear.
6
we find the logic of Hirota especially clear or compelling,
particularly as applied to American citizens. In particular,
Hirota does not explain why, in cases such as this, the fact of a
criminal conviction in a non-U.S. court is a fact of jurisdictional
significance under the habeas statute. And as we acknowledged
in Omar, the Supreme Court’s recent decisions in Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), and Rasul v. Bush, 542 U.S. 466
(2004), are grounds for questioning Hirota’s continued vitality.
Omar, slip op. at 9. But we are not free to disregard Hirota
simply because we may find its logic less than compelling. “If
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.” Id. at 9 (quoting Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989)).
For the reasons discussed above, the judgment of the district
court is
Affirmed.
RANDOLPH, Circuit Judge, concurring in the judgment:
I believe the district court had jurisdiction over Munaf’s
habeas corpus petition. The critical considerations are that
Munaf is an American citizen and that he is held by American
forces overseas. Hirota v. MacArthur, 338 U.S. 197 (1948) (per
curiam), in which the habeas petitioners were Japanese citizens
held in Japan, therefore does not apply. There is a longstanding
jurisdictional distinction between citizens and aliens detained
outside the sovereign territory of the United States. In Johnson
v. Eisentrager, 339 U.S. 763, 781 (1950), decided two years
after Hirota, the Court held that it lacked jurisdiction to issue
writs of habeas corpus for German prisoners held by the United
States in Germany. But the Court stated that its holding did not
apply to American citizens, to whom the “Court long ago
extended habeas corpus” when they were held outside the
United States. See id. at 769-70 (citing Chin Yow v. United
States, 208 U.S. 8 (1908)).
It is hardly surprising then that eight of the nine Justices in
Rasul v. Bush, 542 U.S. 466 (2004), explicitly agreed that
American citizens held by American officials overseas could
invoke habeas jurisdiction. For himself and four other Justices,
Justice Stevens wrote that “[a]liens held at the [Guantanamo
Bay Naval] base, no less than American citizens, are entitled to
invoke the federal courts’ authority under [28 U.S.C.] § 2241.”
Id. at 481. Justice Scalia, joined by Chief Justice Rehnquist and
Justice Thomas, stated that “[n]either party to the present case
challenges the atextual extension of the habeas statute to United
States citizens held beyond the territorial jurisdictions of the
United States courts,” “[a]nd that position – the position that
United States citizens throughout the world may be entitled to
habeas corpus rights – is precisely the position that this Court
adopted in Eisentrager . . . even while holding that aliens abroad
did not have habeas corpus rights.” Id. at 497, 502 (Scalia, J.,
dissenting) (citation omitted).
2
It is true that Omar v. Harvey, No. 06-5126, slip op. at 12
(D.C. Cir. Feb. 9, 2007), distinguished Hirota and Flick v.
Johnson, 174 F.2d 983 (D.C. Cir. 1949), on the ground that in
both cases the alien petitioners held overseas had been convicted
by an international tribunal. But Omar did not speak to the
jurisdictional issue confronting us here. To extend Hirota to
habeas petitions filed by American citizens not only would
contradict Eisentrager and the majority and dissenting opinions
in Rasul, but also would constitute an unwarranted extension of
an opinion that “articulates no general legal principle at all,”
Omar, slip op. at 11.
Habeas petitions test the legality of detention. The fact that
the United States is holding Munaf because of his conviction by
a foreign tribunal thus goes to the question whether he is entitled
to the writ, not to the question whether the court has jurisdiction
to consider the petition. See Bell v. Hood, 327 U.S. 678, 681
(1946). As to the merits, I believe Wilson v. Girard, 354 U.S.
524 (1957), is conclusive. After Japan indicted a United States
soldier for killing a Japanese woman in Japan, the soldier sought
a writ of habeas corpus in the United States District Court for
the District of Columbia to prevent his transfer to Japanese
authorities. Id. at 525-26. The district court denied the writ on
the merits but issued a preliminary injunction against the
soldier’s transfer. Girard v. Wilson, 152 F. Supp. 21, 27
(D.D.C. 1957). Referring to a Security Treaty between the
United States and Japan, the Supreme Court upheld the denial of
the writ but reversed the grant of the injunction, 354 U.S. at 530,
reasoning that 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,” id. at 529 (citing The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812)). In Munaf’s
case, the Congressional Authorization for Use of Military Force
Against Iraq, Pub. L. No. 107-243, 116 Stat. 1498 (2002), in
3
conjunction with United Nations Security Council Resolutions
1546, U.N. Doc. S/RES/1546 (June 8, 2004), and 1637, U.N.
Doc. S/RES/1637 (Nov. 11, 2005), commands the same result.
Cf. Holmes v. Laird, 549 F.2d 1211, 1219 n.59 (D.C. Cir. 1972).