Omar v. Geren; DOJ announces leadership team for National Security Division

1. Omar v. Geren (D.D.C. Sep. 28, 2009) (dismissing habeas petition brought by American held in US military custody in Iraq)

Judge Urbina has dismissed the habeas petition brought by Shawqi Ahmed Omar, an American citizen held in military custody in Iraq.  The 14-page opinion is posted here.  Highlights:

In his amended petition, the petitioner principally contends that he is entitled to such relief because his transfer would violate the Foreign Affairs Reform and Restructuring Act (“the FARR Act”), which implements domestically the Convention Against Torture (“CAT”) and prohibits the government from transferring an individual to a country in which he or she will be subject to torture.

The court concludes that because the FARR Act limits judicial review to claims challenging a final order of removal by immigration authorities – which is not the case here – the statute does not provide the petitioner a grounds for habeas relief. In addition, the court concludes that the other bases for relief asserted in the amended petition are foreclosed by the Supreme Court’s ruling in Munaf v. Geren, 128 S. Ct. 2207 (2008).

The petitioner notes that as in St. Cyr, several circuit courts have held that because 28 U.S.C. § 2242(d) does not contain a sufficiently clear and unambiguous expression of congressional intent to limit judicial review of habeas petitions brought under the FARR Act, that provision does not strip district courts of habeas jurisdiction over FARR Act claims. See Cadet v. Bulger, 377 F.3d 1173, 1182-83 (11th Cir. 2004) (holding that because the FARR Act does not expressly mention “habeas corpus” or “28 U.S.C. § 2241,” it does not eliminate habeas jurisdiction); Singh v. Ashcroft, 351 F.3d 435, 441 (9th Cir. 2003); Ogbudimpka v. Ashcroft, 342 F.3d 207, 215-18 (3d Cir. 2003); Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir. 2003). As the respondents correctly point out, however, the REAL ID Act of 2005 supersedes the holdings in these cases. Respts’ Mot. at 10-11. The Act provides, in pertinent part, that [n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision . . . a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture. 8 U.S.C. § 1252(a)(4). This Circuit has expressly held that the above provision of the REAL ID Act eliminates habeas jurisdiction over FARR Act claims. Kiyemba v. Obama, 561 F.3d 509, 511 (D.C. Cir. 2009), reh’g denied (July 27, 2009), reh’g en banc denied (July 27, 2009).

The petitioner also contends that his transfer to Iraqi authorities would violate his Eighth Amendment right to be free from cruel or unusual punishment because, under Iraqi law, he could be subjected to the death penalty despite the fact that his alleged crimes did not result in any

fatalities. Am. Pet. ¶¶ 43-45. The respondents assert that this line of argument is foreclosed by the Supreme Court’s ruling in Munaf. Respts’ Mot. at 15-16.

As the Munaf Court explained,

[t]he jurisdiction of a nation within its own territory is necessarily exclusive and absolute. This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.[9]Munaf, 128 S. Ct. at 2222 (quoting Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812); Neely, 180 U.S. at 123) (internal citations and quotation marks omitted).

The petitioner in the instant case traveled to Iraq of his own volition, and Iraq plainly has the authority to prosecute him for any crimes he committed within its sovereign territory. Id. At 2223. Munaf therefore bars this court from issuing a writ of habeas corpus to protect the petitioner from the Iraqi criminal justice system based on the Eighth Amendment. See id. (noting that “habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them”).

2. Leadership team announced for DOJ National Security Division

From the press release:

David Kris, the Assistant Attorney General for National Security, today announced the National Security Division’s (NSD) leadership team.

Brad Wiegmann is the Principal Deputy Assistant Attorney General and is currently serving as Co-Chair of the President’s Detention Policy Task Force. When he completes his work with the Task Force, he will return full-time to the Division to help oversee and manage the full spectrum of the NSD’s work. Mr. Wiegmann joins the NSD from the Department of State, where he served as an Assistant Legal Advisor in the Office of the Legal Advisor. Previously, he worked at the National Security Council as a Deputy Legal Advisor and Acting Legal Advisor, at the Department of Defense as Special Counsel, and in private practice.

Donald Vieira is the Chief of Staff. Mr. Vieira previously served in the NSD as an attorney in the Counterespionage Section and as a member of the Division’s staff for the Committee on Foreign Investment in the United States. He returned to the NSD from the House Permanent Select Committee on Intelligence, where he served as Deputy Chief Counsel and as Subcommittee Staff Director of the Subcommittee on Oversight and Investigations. Prior to entering government service, Mr. Vieira began his legal career as an associate at the law firm of Williams & Connolly LLP.

Todd Hinnen is the Deputy Assistant Attorney General for Law and Policy. Mr. Hinnen joins the Division from the U.S. Senate, where he served as Chief Counsel to then-Senator Joe Biden. Previously, Mr. Hinnen was a Director at the National Security Council’s Combating Terrorism Directorate and a Trial Attorney in the Justice Department’s Criminal Division.

Tashina Gauhar is the Deputy Assistant Attorney General for Intelligence. Ms. Gauhar has extensive experience working with the U.S. Intelligence Community and has held a variety of national security positions within the Department since 2001, including serving as an Assistant Counsel in the Office of Intelligence Policy and Review and later as the Deputy Chief of Operations in the Office of Intelligence, and recently the Chief of Operations. Prior to joining the Justice Department, Ms. Gauhar was an associate at the law firm of DLA Piper (then Piper Marbury Rudnick and Wolfe, LLP).

George Toscas is currently serving as the Acting Deputy Assistant Attorney General for Counterterrorism and Counterespionage. Having entered the Department through the Attorney General’s Honors Program, Mr. Toscas is a career prosecutor with 16 years of prosecutorial experience. During his tenure, he has worked on some of the most sensitive and significant national security matters in the Department. Mr. Toscas previously served in the Counterterrorism Section and its predecessor, the Terrorism and Violent Crime Section, at the Justice Department.

This leadership team is assisted by Sheryl L. Walter, who will remain the Division’s Executive Officer. Ms. Walter previously served in the Justice Department as Chief of Staff in the former Office of Intelligence Policy and Review, as Acting Assistant Attorney General for Legislative Affairs, and as an attorney-advisor in the Office of Legislative Affairs. Prior to joining the Department she worked at the United States Senate. Ms. Walter also has worked in the private sector as general counsel for a nonprofit research institute and as an associate at the law firm formerly known as Mayer, Brown and Platt. She clerked for the Honorable Donald P. Lay, Chief Judge for the U.S. Court of Appeals for the Eighth Circuit.

The work of the Division’s leadership team is also aided by experienced counsels and counselors:

Leonard Bailey is Senior Counselor to the Assistant Attorney General. Mr. Bailey and is spearheading the NSD’s new cyber efforts. Mr. Bailey comes to the NSD from the Criminal Division’s Computer Crimes and Intellectual Property Section. He has been with the Justice Department since 1991 and is widely respected within the Justice Department and the Intelligence Community for his knowledge of cyber issues.

Carrie Cordero is Counsel to the Assistant Attorney General. Ms. Cordero recently returned to the NSD from a joint duty assignment at the Office of the Director of National Intelligence, where she served as a senior associate general counsel in the General Counsel’s office. Previously, Ms. Cordero was an attorney in the Justice Department’s Office of Intelligence and its predecessor, the Office of Intelligence Policy and Review, having joined DOJ through the Honor Program. She has also been a Special Assistant United States Attorney.

Brian Nelson is Special Counsel to the Assistant Attorney General. Mr. Nelson recently served in private practice as an associate with the law firm of Sidley Austin LLP in Washington, D.C. Earlier in his career, Mr. Nelson served as a Law Clerk to Judge Louis H. Pollak on the U.S. District Court for the Eastern District of Pennsylvania and to William A. Fletcher on the U.S. Court of Appeals for the Ninth Circuit.

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