In the past two weeks, the Court of Appeals for the District of Columbia Circuit has handled two cases raising important questions of the scope of executive power to detain citizens without any judicial supervision.  The two cases, Omar v. Harvey and Munaf v. Harvey, concern U.S. citizens detained in Iraq.  Perhaps because the strife-torn circumstances of Baghdad seem so far away from normality, the government’s claim to unchecked detention power in these cases has aroused little attention.  But the arguments in play have a far broader scope than just wartime detention.

Since the first Judiciary Act, federal law has contained a guarantee of habeas corpus.  Any citizen detained by the federal government could thus approach a federal court and seek review of his lock-up.  To be sure, there have been moments when a president refused to obey the federal courts.  Most famously, Lincoln declined to obey Chief Justice Roger Taney in the Merryman case.  But the governing rule has been that habeas exists to protect the citizen’s liberty at all times.  When U.S. troops and their dependents began being stationed overseas in large numbers after World War II, the question arose whether citizens carried their constitutional shield with them.  The Supreme Court in a series of cases involving military trials overseas was unequivocal:  A citizen had a judicially enforceable right to be free of lawless detention by her own government regardless of where she was in the world.

In both Omar and Munaf, Justice Department lawyers made a simple yet sweeping argument:  The United States can act as a jailor of its own citizens without any judicial review provided it wears a “multinational� hat.  They rely on a 1948 Supreme Court case called Hirota, in which the Court in three curt paragraphs dismissed a petition for habeas corpus from the former Japanese Prime Minister Kiko Hirota.

Despite the fact that Hirota has almost never been cited, and has been little discussed by the Court, the Government argues that it establishes a gaping exception to habeas’s protection.  Their argument is that provided a detention is labeled “multi-national,� no court has the power to look inside the jail to discern its legality.  This argument does not stop at the Iraqi border—it has been invoked before in a case involving detention in Saudi Arabia—and indeed could be extended into the United States.  Like claims about the status of Guantanamo and the notion of “enemy combatant� detention, this argument essentially allows unchecked executive detention.

In Omar, the Court of Appeals rejected this argument, but government lawyers pressed the same claim last week in oral argument in Munaf, and said they would seek en banc review of the Omar decision.  The fate of the Hirota argument thus remains to be seen.

This entry was posted on Tuesday, February 20th, 2007 at 4:37 pm and is filed under Civil Rights, Homeland Security, Politics .