Today the D.C. Circuit handed down a divided opinion in Omar v. Harvey, a case involving a planned transfer of a detainee in Iraq from U.S. forces to Iraqi officials. The case rests on some hypertechnical questions, but we may be hearing more about it in the future: it not only touches on the role of the courts in wartime, but it also features a dissent by Judge Janice Rogers Brown that is sure to draw attention if another vacancy arises at the Supreme Court.

  Shawqi Ahmad Omar was captured by U.S. forces during a raid on associates of Abu Musab al-Zarqawi. The two sides to the litigation present different stores of what Omar was doing when captured. The government believes Omar was an insurgent who is part of Zarqawi's network, and states that weapons and IED-making materials were found in his Baghdad home. Omar contends this is wrong, and that he came to Iraq after the invasion simply to seek work and was about to leave the country before he was arrested by U.S. forces. Both sides seem to agree that Omar has dual American/Jordanian citizenship; he received U.S. citizenship after marrying a U.S. citizen, the former Sandra Kay Sulzle.

  Omar's family brought a habeas corpus action in the U.S. District Court asking the Court to order Omar's release from detention, or in the alternative to order Omar to be brought before a U.S. Court and not transfered out of U.S. custody to try to evade habeas corpus. Meanwhile, a military review panel in Iraq concluded that Omar was an enemy combatant, and the miltary decided to transfer him to the Central Criminal Court of Iraq, a Baghdad-based Iraqi criminal court. Omar's family sought a TRO and later a preliminary injunction ordering the military not to transfer Omar out of U.S. custody while the case was before the U.S. Courts. The district court agreed, entering a preliminary injunction stating that the government "shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court's memorandum opinion."

  Today's decision is the appeal from the injunction and addressed two issues: first, was the injunction procedurally improper because detention of enemy combatants in wartime is a political question, and second, was the district court's preliminary injunction an abuse of discretion on the merits? All three Judges on the panel — Tatel, Edwards, and Brown — agreed that the legality of the detention was not a political question. However, they divided on whether the injunction was an abuse of discretion on the merits. Much of the decision is hypertechnical, for example, on what just what the District Court meant when it ordered that Omar could not be "removed." Did that mean that he could not be transfered out of U.S. custody, or did it actually mean that the Court was ordering that Omar could not be transfered or released?. Judge Tatel's majority opinion concludes that it meant only the former, and that the injunction is proper.

  Judge Brown dissented on the propriety of the injunction. Given that Brown is often mentioned as a future pick if the Bush Administration has another Supreme Court vacancy to fill, and that the President presumably is very interested in Judge Brown's views of Executive power — and that Judge Brown knows all of this — her dissent is particularly worth reading. As far as I know, this is the first opinion on a hot-button question that she has written as a federal Judge. Here are some excerpts that you can be sure will be read closely by the White House if another vacancy occurs:

  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.
  . . . .
  The majority's logic proceeds as follows: (1) An injunction barring transfer is permissible. (2) Unrestricted intergovernmental 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.
  . . . .
  [FN] 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.

  Thanks to How Appealing for the link.