More than a year after the Supreme Court ruled that the case should be dismissed, a federal judge today finally rejected a U.S. citizen’s attempt to stop the American military from transferring him into Iraqi custody.
In an opinion released this afternoon, Judge Ricardo Urbina of the U.S. District Court for the District of Columbia found that laws against sending detainees to countries where they might be tortured did not bar the government from transferring Shawqi Ahmad Omar over to Iraqi authorities. But the judge suggested that rulings by higher courts that led him to this result posed constitutional concerns.
In October 2004, U.S. soldiers arrested Omar in Iraq, accusing him of aiding insurgents there. His lawyers said he had traveled to the country to find work in the reconstruction effort. His family filed a habeas petition before Urbina in 2005, and later sought an injunction to stop the military from transferring him to Iraqi custody.
When Urbina granted the injunction, the Justice Department appealed to the Supreme Court. In Munaf v. Geren, the justices ruled that Omar’s case should have been dismissed because judges do not have the authority to stop the executive branch from turning over an individual to another nation’s authority if he is accused of a crime in that country and already detained in that country.
Omar’s lawyers, including Jonathan Hafetz of the American Civil Liberties Union and University of Chicago law professor Aziz Huq, filed a new habeas petition last year. In it, they argued that he should not be transferred because of the possibility that he would be tortured by Iraq. (Hafetz and Huq both worked at the Brennan Center for Justice when they first brought this case.)
Today, Urbina found that a July appeals court decision had essentially stripped him of the ability to hear their new argument. In that earlier case, Kiyemba v. Obama, the U.S. Court of Appeals for the D.C. Circuit ruled that nine Chinese Uighers could not stop the United States from sending them to a country that might torture them.
In his opinion, Urbina acknowledged concerns that the Kiyemba ruling would make it impossible for detainees who feared torture to seek help in the courts. In a footnote, he wrote that “the fact that the petitioner appears to have no avenue of judicial review would appear to implicate Suspension Clause concerns.”
“The decision is very disappointing,” said Huq. “Given that the Obama administration hasn't given up the practice of transferring terrorism suspects to other countries for detention or questioning, the district court's elimination of review for the risk of torture is especially of concern.”