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Mohammed v. Harvey

October 19, 2006


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on a motion[6] and supplemental motion [12] for temporary restraining order seeking injunctive relief pending the Court's review of a petition for writ of habeas corpus. [1] Upon consideration of the petition, the memorandum in support of the motion for temporary restraining order, the opposition and the reply thereto, the applicable law, the entire record herein, and after hearing argument, the Court dismisses the petition sua sponte for lack of subject matter jurisdiction. As such, the Court also dismisses the motion for temporary restraining order as moot. The Court's reasoning is set forth below.


The petitioner, Mohammad Munaf,*fn1 was born in Iraq in 1952 and became a United States citizen in 2000. Mohammed Decl. ¶¶ 2, 4, 7.*fn2 He is married to a Romanian woman, split residences between Romania and the United States from 1996 to 2001, and since 2001 has lived solely in Romania. Id. ¶¶ 5, 6, 9. In March 2005 he traveled from Romania to Iraq with several Romanian journalists. Id. ¶ 10. Shortly after their arrival, the group was kidnapped and held captive for almost two months by a group claiming to be the "Muadh Ibn Jabal Brigade." Id. ¶¶ 11-13. Their release was secured in May 2005 during a raid by military troops under the command of Multi-National Force-Iraq ("MNF-I"). Gardner Decl. ¶¶ 3-4.

MNF-I is a military force described as "a coalition authority consisting of approximately twenty-seven different nations that operates in accordance with the mandate of United Nations Security Council Resolutions (UNSCR) 1546 and 1637 (2005)." Gardner Decl. ¶ 2; see also Respondents' Opposition to Petitioners' Motion for a Temporary Restraining Order [9-1] ("Opp."), Ex. 2 (Resolution 1546), Ex. 3 (Resolution 1637). Under this limited mandate, which is set to expire at the end of 2006 unless renewed, MNF-I operates "on behalf of and at the request of the Iraqi government" in Iraq. Gardner Decl. ¶ 2. MNF-I's power under the U.N. Resolutions includes the authority to detain prisoners who pose a threat to security in Iraq. MNF-I and the government of Iraq have agreed that MNF-I will maintain physical custody of prisoners awaiting criminal prosecution in Iraqi courts, as Iraq lacks much of the infrastructure necessary for maintaining its own prisoners. Id. ¶¶ 2-3; Opp. at 4.

Since the MNF-I raid, petitioner Munaf has been held as a prisoner by MNF-I troops at Camp Cropper, a military installation located at the Baghdad International Airport. Petition ¶ 3. It has been alleged that petitioner was a willing participant in a kidnapping-for-profit scheme, in that he posed as a kidnap victim and led the actual victims into a trap.*fn3 Gardner Decl. ¶¶ 4-5, 11-14. Petitioner maintains he is innocent of any criminal wrongdoing, and that he is not and has never been a member of al Qaeda in Iraq or any other terrorist group. Petition ¶ 22.

Petitioner alleges that for the first five months of his detention, he was held incommunicado. Petition ¶ 4. Since then, he has had limited contact with his family and with an Iraqi attorney. Id. Two months after petitioner was taken into custody, he appeared before a three-person panel of MNF-I officers who conducted "a comprehensive review of Munaf's status and detention." Opp. at 7; Gardner Decl. ¶ 5. The panel interviewed witnesses and reviewed "available intelligence information." Gardner Decl. ¶ 5. Petitioner was present at the hearing and had an opportunity to hear the basis for his detention and to make a statement. Id. The panel found that petitioner should be considered a "security internee," as defined in U.N. documents, and should continue to be detained pursuant to MNF-I's U.N. mandate. Id.

Munaf's case was referred to the Iraqi government. Gardner Decl. ¶ 6. The government instituted criminal proceedings in the Central Criminal Court of Iraq ("CCCI"), an Iraqi court that is staffed by Iraqi citizens and applies Iraqi law. Id. ¶ 7. Munaf has appeared at four CCCI "Investigative Hearings," each time with his Iraqi attorney. Id. ¶ 15. At two of these hearings Munaf appeared as a witness against other defendants, and at the other two he appeared as the defendant in his own prosecution. Id. The Investigative Hearing Judge concluded that there was sufficient evidence to refer Munaf's case to the Trial Court as a defendant. Id. Respondents allege that Munaf has confessed his role in the kidnapping on camera, in writing, and in front of the Investigative Hearing Judge. Gardner Decl. ¶ 11. Munaf counters that any incriminating statements he made were coerced. First Riordan Decl. ¶¶ 8, 11. Specifically, petitioner alleges that he has been threatened by "U.S. and Romanian officials," and that unspecified "[o]fficials" told him that if he did not confess, he, his sister, and his wife would be sexually assaulted. Id.

Through his sister as next friend, Munaf petitioned in this Court for a writ of habeas corpus on August 18, 2006. The petition named as respondents Francis J. Harvey, the United States Secretary of the Army; Maj. Gen. William H. Brandenburg, Deputy Commanding General of Detainee Operations for Task Force 134, MNF-I; and one "Colonel Steele," first name unknown, who is the alleged Commanding Officer of Camp Cropper. The petition calls for issuance of a writ compelling respondents to allow Munaf access to attorneys of his choice, to "establish a lawful basis for Mr. Munaf's detention or release him from custody," and to enjoin his transfer to Iraq authorities. On September 8, 2006, petitioner moved for a temporary restraining order to prohibit respondents from transferring him to the custody of the government of Iraq, pending resolution of his habeas petition. A hearing on the motion was held on October 10, 2006.

On October 12, 2006, petitioner and his five co-defendants appeared before a three-judge Trial Panel of the CCCI to face kidnapping charges under the Iraqi Penal Code. Pirone Decl. ¶ 3. Petitioner was accompanied by his Iraqi counsel and had the opportunity to "submit any evidence or bring any witnesses." Id. ¶4. Indeed, petitioner did make a statement, reiterating his position that he was innocent and that his prior confession was coerced. Second Riordan Decl. ¶ 9. Petitioner claims that two "United States military officials" attended the hearing. Id. ¶ 7. He alleges that one was an American soldier who told the court he was appearing at the request of the Romanian embassy to seek the death penalty for the defendants. Id. Petitioner alleges that the other was an American general "who told the judge in open court that the defendants should all be convicted and sentenced to death," and that one "Judge Al-Rubaay" disagreed with the general.*fn4 Id. at ¶¶ 7-8. At one point, defendants and their counsel were removed from the courtroom. Petitioner claims that the "American military officials" then met with the judge for about 15 minutes. Id. ¶ 12.

Respondents explain that Robert Pirone, a Coast Guard Lieutenant who serves as an attorney at the CCCI Liaison Office in Baghdad, was present at the hearing in his capacity as a participant in MNF-I. Pirone Decl. ¶ 1. According to Pirone's sworn affidavit, Pirone appeared at the trial to make a formal complaint for the Romanian government about the kidnapping, whose victims were all Romanian.*fn5 Id. ¶ 7. Pirone was under oath at the trial, and his notarized authorization to represent the Romanian Embassy had been submitted to the court weeks before the trial. Id. In his affidavit, Pirone attests that his role at the trial was limited to answering questions about the case, based on prior confessions by the defendants, and to making the formal complaint, a requirement under Iraqi law. Id. Petitioner and his co-defendants were allowed to make statements, and counsel for the prosecution and defendants made arguments.*fn6 Second Riordan Decl. ¶¶ 9-10; Pirone Decl. ¶¶ 6-9.The Trial Panel questioned the defendants and called additional witnesses. Pirone Decl. ¶¶ 6-7.

Pirone attests that no other member of MNF-I participated in the trial in any way, and that any MNF-I personnel who were present were there only as observers or guards. Id. ¶ 8. There was no American general present, nor a general of any other MNF-I member nation. Id. Pirone states that when the courtroom was closed, he left the room and spent the entire recess talking with petitioner's attorney. Id. ¶ 10. He also says that no MNF-I personnel were with the judges while they deliberated. Id. When the hearing was reconvened, the court found petitioner and his five co-defendants*fn7 guilty of kidnapping and sentenced them all to death.

A standard practice is followed when an MNF-I detainee is convicted of criminal charges by the CCCI. Gardner Decl. ¶ 17. First, the Trial Court issues an order to the Deputy Commanding General for Detainee Operations of MNF-I, who is a respondent in this case.*fn8 Id. In response, the Deputy Commanding General for Detainee Operations issues a transfer order releasing the detainee to an Iraqi Ministry of Justice facility. Id. It typically takes two to three weeks to process a transfer. Id. A defendant under sentence of death in Iraq has a statutory right to an automatic appeal to the Iraqi Court of Cassation. Pirone Decl. ¶ 13. The defendant has 30 days from the day after sentencing to submit material to the Court of Cassation. Id.


A. Standard for Reviewing Habeas Corpus Petition for Jurisdiction

"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3). If a court determines that it lacks subject matter jurisdiction, it therefore is duty bound to dismiss the case on its own motion. In considering the legal sufficiency of the jurisdictional allegations in a petition for habeas corpus, the Court takes the petitioners' factual allegations as true, drawing all reasonable inferences in the petitioners' favor. See Hawk v. Olson, 326 U.S. 271, 272 (1945); Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000). But in determining its own jurisdiction, the Court is not limited to the allegations in the petition. See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). The Court may examine materials outside the pleadings as appropriate to determine whether it has jurisdiction over the subject matter. See Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

Petitioner alleges that a "U.S. citizen detained in the custody of federal officials in violation of the Constitution, laws, or treaties of the U.S. unquestionably has the right to challenge that detention in federal court once personal jurisdiction over the petitioner's custodian is established." Petition ¶ 8. He alleges that he "is detained by U.S. officials at a detention facility known as Camp Cropper. The facility is under the control of the U.S. military and within the plenary and exclusive jurisdiction or dominion exercised in fact of the U.S." Id. ¶ 9. He contends that he is "in U.S. custody." Id. ¶ 21. Respondents counter that "[a]lthough United ...

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