                   United States Court of Appeals
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT




No. 09-5410                                                      September Term, 2010
                                                                 FILED ON: JULY 8, 2011

SANDRA K. OMAR, ET AL.,

               APPELLANTS

       V.

JOHN M. MCHUGH, SECRETARY OF THE UNITED
STATES ARMY, ET AL.,

               APPELLEES


                           Appeal from the United States District Court
                                   for the District of Columbia
                                       (No. 1:05-cv-02374)



       Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit Judges

                                              ORDER

       It is ORDERED, on the court’s own motion, that the majority opinion issued on June 21,
2011, be amended as follows:

       On page 20, before the first full paragraph, insert:

            None of this means that the Executive Branch may detain or transfer Americans or
       individuals in U.S. territory at will, without any judicial review of the positive legal authority
       for the detention or transfer. In light of the Constitution’s guarantee of habeas corpus,
       Congress cannot deny an American citizen or detainee in U.S. territory the ability to contest
       the positive legal authority (and in some situations, also the factual basis) for his detention or
       transfer unless Congress suspends the writ because of rebellion or invasion. See Boumediene
       v. Bush, 553 U.S. 723, 785-86 (2008). In the earlier iteration of this litigation, Omar raised
       the habeas argument that the Government lacks constitutional or statutory authority to
       transfer him to Iraqi authorities. The Supreme Court addressed Omar’s argument and
          determined that the Executive Branch had the affirmative authority to transfer Omar. See
          Munaf v. Geren, 553 U.S. 674, 704 (2008). (For wartime military transfers, Article II and the
          relevant Authorization to Use Military Force generally give the Executive legal authority to
          transfer.) Here, we are addressing Omar’s separate argument, not about the positive legal
          authority or factual basis for his transfer, but rather about conditions in the receiving country.
           The Supreme Court addressed that argument as well in Munaf, and it concluded that a right
          to judicial review of conditions in the receiving country has not traditionally been part of the
          habeas or due process inquiry with respect to transfers. See id. at 700-03. Therefore,
          Congress need not give transferees such as Omar a right to judicial review of conditions in
          the receiving country.

       It is further ORDERED, on the court’s own motion, that the concurring opinion issued on
June 21, 2011, be amended as follows:

          On page 2, first full paragraph, line 17, insert a comma after “moot”.

        On page 4, first full paragraph, line 1, delete “argues that we need not”, and insert in lieu
thereof:

          has a more limited view of the Suspension Clause. Without offering a theory that explains
          which claims the clause protects, the majority argues that we cannot consider Omar’s FARR
          Act claim because it does not fall into any of three categories that apparently make up the
          majority’s view of the habeas universe. This would be a different case, we are told, if Omar
          were raising a constitutional claim, Majority Op. 17, a claim that existed in 1789, id. at 19
          n.10, or a claim that there is no “positive legal authority” for his transfer, id. at 20. To be
          sure, constitutional habeas includes these types of claims. But the Supreme Court has told us
          that constitutional habeas is at least as robust as common law habeas was when Congress
          passed the Judiciary Act of 1789, St. Cyr, 533 U.S. at 301, and the majority’s view of our
          habeas jurisdiction is more restricted than habeas courts’ traditional authority “to examine
          the legality of the commitment,” Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1830); see also
          Boumediene v. Bush, 553 U.S. 723, 739 (2008) (“The Framers viewed freedom from
          unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas
          corpus as a vital instrument to secure that freedom.”).

               The majority first argues that we lack jurisdiction to

          On page 4, first full paragraph, line 3, delete “the majority’s”, and insert in lieu thereof:
“this”.

        On page 4, first full paragraph, line 12, delete “States.’ Id.”, and insert in lieu thereof:
“States,’ id.”.

        On page 5, first full paragraph, lines 1-2, delete “The majority also suggests an alternative
theory that the Suspension Clause only applies to”, and insert in lieu thereof: “Elsewhere in the
opinion, the majority suggests that the Suspension Clause applies only to those”.
       On page 6, paragraph that carries over from page 5, line 2, begin a new paragraph after
“Parliament.”.

        On page 6, paragraph that carries over from page 5, lines 2-4, delete “The majority is correct
that Omar is invoking a relatively new statute to make his claim and that, before”, and insert in lieu
thereof: “The majority is correct that, prior to”.

        On page 6, paragraph that carries over from page 5, lines 9-16, delete “But Omar has a
colorable claim that the FARR Act has overridden that traditional rule, and the Constitution’s habeas
corpus guarantee entitles him to raise that claim even though it relies on a recently enacted statute.
The historical pedigree of the asserted due process right in Munaf only mattered because the
existence of a due process right depends on whether the right is historically rooted.” and insert in lieu
thereof:

        But the majority wrongly suggests that Munaf v. Geren limits a prisoner to claims that have
        “traditionally been part of the habeas or due process inquiry.” Majority Op. 21 (citing Munaf,
        553 U.S. at 700-03). Munaf examined the historical pedigree of the right against transfer to
        torture only because the petitioners in that case argued that their transfers would violate due
        process, a claim that triggers inquiry into the historic roots of the asserted right. The Court
        did not have occasion to consider whether the Suspension Clause entitles prisoners to raise
        claims based on recently enacted statutes. See Munaf, 553 U.S. at 703 & n.6 (reserving
        question of whether Omar could successfully challenge his transfer under the FARR Act).

             Finally, the majority suggests that the Suspension Clause entitles a prisoner to claim that
        there is no “positive legal authority for [his] . . . transfer” but not that his transfer would
        violate his statutory rights. Majority Op. 20. The majority never explains why the Suspension
        Clause’s protections depend on a distinction between whether Congress has withheld
        statutory authority from the Executive to transfer a prisoner or granted a statutory right
        against transfer, and the difference seems to me no more than “empty semantics.” Id. at 17.
        For example, Omar’s claim can also be styled as an argument that the government lacks
        “positive legal authority” to transfer him: he says the FARR Act places his transfer into Iraqi
        custody beyond the Executive’s power. In fact, Omar articulated his FARR Act claim in
        exactly this way before the district court, asserting that if his claim succeeds the government
        “will no longer have any legal ground” to transfer him. Pet’r’s Opp’n to Mot. to Dismiss 18,
        No. 1:05-cv-02374 (D.D.C. Dec. 12, 2008).

             But even if there were a meaningful distinction between withholding statutory authority
        to transfer and granting a statutory right against transfer, the Supreme Court did not
        recognize any such distinction in St. Cyr. Instead, the Court said that “a serious Suspension
        Clause issue would be presented” if Congress were to strip all courts of jurisdiction to
        consider an alien’s claim that he had a statutory right not to be removed. 533 U.S. at 305.
        Whatever the merit of the majority’s approach to the Suspension Clause, it is not the
        approach the Supreme Court took in St. Cyr.
       On page 6, first full paragraph, line 1, delete “also”.

       On page 8, first full paragraph, line 10, delete “prevent the”, and insert in lieu thereof:
“prevent”.


                                                                 FOR THE COURT:
                                                                 Mark J. Langer, Clerk

                                                      BY:        /s/
                                                                 Jennifer M. Clark
                                                                 Deputy Clerk
