(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MUNAF ET AL. v. GEREN, SECRETARY OF THE ARMY, 

ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 06–1666. Argued March 25, 2008—Decided June 12, 2008* 

The Multinational Force–Iraq (MNF–I) is an international coalition

force composed of 26 nations, including the United States. It operates in Iraq under the unified command of U. S. military officers, at

the Iraqi Government’s request, and in accordance with United Nations Security Council Resolutions. Pursuant to the U. N. mandate, 

MNF–I forces detain individuals alleged to have committed hostile or

warlike acts in Iraq, pending investigation and prosecution in Iraqi

courts under Iraqi law. 

Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are 

American citizens who voluntarily traveled to Iraq and allegedly 

committed crimes there. They were each captured by military forces 

operating as part of the MNF–I; given hearings before MNF–I Tribunals composed of American officers, who concluded that petitioners 

posed threats to Iraq’s security; and placed in the custody of the U. S.

military operating as part of the MNF-I. Family members filed nextfriend habeas corpus petitions on behalf of both petitioners in the 

United States District Court for the District of Columbia. 

In Omar’s case, after the Department of Justice informed Omar

that the MNF–I had decided to refer him to the Central Criminal 

Court of Iraq for criminal proceedings, his attorney sought and obtained a preliminary injunction from the District Court barring 

Omar’s removal from United States or MNF-I custody. Affirming, 

the D. C. Circuit first upheld the District Court’s exercise of habeas 

jurisdiction, finding that Hirota v. MacArthur, 338 U. S. 197, did not 

—————— 

*Together with No. 07–394, Geren, Secretary of the Army, et al. v. 

Omar et al., also on certiorari to the same court. 
 

 

 

 

2 MUNAF v. GEREN 

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preclude review because Omar, unlike the habeas petitioners in Hirota, had yet to be convicted by a foreign tribunal. 

Meanwhile, the District Court in Munaf’s case dismissed his habeas petition for lack of jurisdiction. The court concluded that Hirota 

controlled and required that the petition be dismissed for lack of jurisdiction because the American forces holding Munaf were operating 

as part of an international force—the MNF-I. The D. C. Circuit 

agreed and affirmed. It distinguished its prior decision in Omar, 

which upheld jurisdiction over Omar’s habeas petition, on the 

grounds that Munaf had been convicted by a foreign tribunal while 

Omar had not. 

Held: 

1. The habeas statute extends to American citizens held overseas 

by American forces operating subject to an American chain of command. The Government’s argument that the federal courts lack jurisdiction over the detainees’ habeas petitions in such circumstances

because the American forces holding Omar and Munaf operate as 

part of a multinational force is rejected. The habeas statute, 28 

U. S. C. §2241(c)(1), applies to persons held “in custody under or by 

color of the authority of the United States.” The disjunctive “or” in

§2241(c)(1) makes clear that actual Government custody suffices for 

jurisdiction, even if that custody could be viewed as “under . . . color 

of” another authority, such as the MNF–I. 

The Court also rejects the Government’s contention that the District Court lacks jurisdiction in these cases because the multinational

character of the MNF–I, like the multinational character of the tribunal at issue in Hirota, means that the MNF-I is not a United 

States entity subject to habeas. The present cases differ from Hirota 

in several respects. The Court in Hirota may have found it significant, in considering the nature of the tribunal established by General

MacArthur, that in that case the Government argued that General 

MacArthur was not subject to United States authority, that his duty

was to obey the Far Eastern Commission and not the U. S. War Department, and that no process this Court could issue would have any 

effect on his action. Here, in contrast, the Government acknowledges that U. S. military commanders answer to the President.

These cases also differ from Hirota in that they concern American 

citizens, and the Court has indicated that habeas jurisdiction can depend on citizenship. See e.g., Johnson v. Eisentrager, 339 U. S. 763, 

781. Pp. 7–11.

2. Federal district courts, however, may not exercise their habeas 

jurisdiction to enjoin the United States from transferring individuals 

alleged to have committed crimes and detained within the territory of

a foreign sovereign to that sovereign for criminal prosecution. Be-
 

 

 

 

Cite as: 553 U. S. ____ (2008) 3 

Syllabus 

cause petitioners state no claim in their habeas petitions for which 

relief can be granted, their habeas petitions should have been 

promptly dismissed, and no injunction should have been entered. 

Pp. 11–28. 

(a) The District Court abused its discretion in granting Omar a 

preliminary injunction, which the D. C. Circuit interpreted as prohibiting the Government from (1) transferring Omar to Iraqi custody, (2)

sharing with the Iraqi Government details concerning any decision to 

release him, and (3) presenting him to the Iraqi courts for investigation and prosecution, without even considering the merits of the habeas petition. A preliminary injunction is an “extraordinary and 

drastic remedy.” It should never be awarded as of right, Yakus v. 

United States, 321 U. S. 414, 440, and requires a demonstration of, 

inter alia, “a likelihood of success on the merits,” Gonzales v. O 

Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 428. 

But neither the District Court nor the D. C. Circuit considered the 

likelihood of success as to the merits of Omar’s habeas petition. Instead, the lower courts concluded that the “jurisdictional issues” implicated by Omar’s petition presented difficult and substantial questions. A difficult question as to jurisdiction is, of course, no reason to

grant a preliminary injunction. 

The foregoing analysis would require reversal and remand in each

of these cases: The lower courts in Munaf erred in dismissing for

want of jurisdiction, and the lower courts in Omar erred in issuing

and upholding the preliminary injunction. Our review of a preliminary injunction, however, “is not confined to the act of granting the 

injunctio[n].” City and County of Denver v. New York Trust Co., 229 

U. S. 123, 136. Rather, a reviewing court has the power on appeal 

from an interlocutory order “to examine the merits of the case . . . and

upon deciding them in favor of the defendant to dismiss the bill.” 

North Carolina R. Co. v. Story, 268 U. S. 288, 292. In short, there are 

occasions when it is appropriate for a court reviewing a preliminary 

injunction to proceed to the merits; given that the present cases implicate sensitive foreign policy issues in the context of ongoing military operations, this is one of them. Pp. 11–14. 

(b) Petitioners argue that they are entitled to habeas relief because they have a legally enforceable right not to be transferred to

Iraqi authorities for criminal proceedings and because they are innocent civilians unlawfully detained by the Government. With respect

to the transfer claim, they request an injunction prohibiting the Government from transferring them to Iraqi custody. With respect to the

unlawful detention claim, they seek release but only to the extent it

would not result in unlawful transfer to Iraqi custody. Because both 

requests would interfere with Iraq’s sovereign right to “punish of-
 

 

4 MUNAF v. GEREN 

Syllabus 

fenses against its laws committed within its borders,” Wilson v. Girard, 354 U. S. 524, 529, petitioners’ claims do not state grounds 

upon which habeas relief may be granted. Their habeas petitions

should have been promptly dismissed and no injunction should have

been entered. Pp. 14–28. 

(1) Habeas is governed by equitable principles. Thus, prudential concerns may “require a federal court to forgo the exercise of its 

habeas . . . power.” Francis v. Henderson, 425 U. S. 536, 539. Here, 

the unusual nature of the relief sought by petitioners suggests that

habeas is not appropriate. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536. The 

typical remedy is, of course, release. See, e.g., Preiser v. Rodriguez, 

411 U. S. 475, 484. But the habeas petitioners in these cases do not

want simple release; that would expose them to apprehension by

Iraqi authorities for criminal prosecution—precisely what they went

to federal court to avoid. 

The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory

of Iraq today, or that they are alleged to have committed serious

crimes in Iraq. Indeed, Omar and Munaf both concede that, if they

were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. Further, Munaf is the subject of ongoing 

Iraqi criminal proceedings and Omar would be but for the present injunction. Given these facts, Iraq has a sovereign right to prosecute 

them for crimes committed on its soil, even if its criminal process 

does not come with all the rights guaranteed by the Constitution, see 

Neely v. Henkel, 180 U. S. 109, 123. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation

within its own territory is necessarily exclusive and absolute.” 

Schooner Exchange v. McFaddon, 7 Cranch 116, 136. 

This Court has twice applied that principle in rejecting claims that 

the Constitution precludes the Executive from transferring a prisoner 

to a foreign country for prosecution in an allegedly unconstitutional

trial. Wilson, supra, at 529–530; Neely, supra, at 112–113, 122. 

Omar and Munaf concede that Iraq has a sovereign right to prosecute

them for alleged violations of its law. Yet they went to federal court

seeking an order that would allow them to defeat precisely that sovereign authority. But habeas corpus does not bar the United States 

from transferring a prisoner to the sovereign authority he concedes 

has a right to prosecute him. Petitioners’ “release” claim adds nothing to their “transfer” claim and fails for the same reasons, given that 

the release they seek is release that would avoid transfer. 

There is of course even more at issue here: Neely involved a charge 

of embezzlement and Wilson the peacetime actions of a serviceman. 
 

 

Cite as: 553 U. S. ____ (2008) 5 

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The present cases concern individuals captured and detained within

an ally’s territory during ongoing hostilities involving our troops. It 

would be very odd to hold that the Executive can transfer individuals 

such as those in the Neely and Wilson cases, but cannot transfer to an 

ally detainees captured by our Armed Forces for engaging in serious

hostile acts against that ally in what the Government refers to as “an

active theater of combat.” Pp. 15–23. 

(2) Petitioners’ allegations that their transfer to Iraqi custody

is likely to result in torture are a matter of serious concern but those

allegations generally must be addressed by the political branches, not 

the judiciary. The recognition that it is for the democratically elected 

branches to assess practices in foreign countries and to determine national policy in light of those assessments is nothing new. As Chief 

Justice Marshall explained in the Schooner Exchange, “exemptions

from territorial jurisdiction . . . must be derived from the consent of 

the sovereign of the territory” and are “rather questions of policy 

than of law, . . . they are for diplomatic, rather than legal discussion.” 

7 Cranch, at 143, 146. In the present cases, the Government explains

that it is the policy of the United States not to transfer an individual

in circumstances where torture is likely to result and that the State 

Department has determined that the Justice Ministry—the department which has authority over Munaf and Omar—as well as its 

prison and detention facilities, have generally met internationally accepted standards for basic prisoner needs. The judiciary is not suited 

to second-guess such determinations. Pp. 23–26. 

(3) Petitioners’ argument that, under Valentine v. United 

States ex rel. Neidecker, 299 U. S. 5, the Executive lacks discretion to 

transfer a citizen to Iraqi custody unless “legal authority” to do so “is

given by act of Congress or by the terms of a treaty,” id., at 9, is rejected. Valentine was an extradition case; the present cases involve 

the transfer to a sovereign’s authority of an individual captured and 

already detained in that sovereign’s territory. Wilson, supra, also 

forecloses petitioners’ contention. A Status of Forces Agreement

there seemed to give the habeas petitioner a right to trial by an 

American military tribunal, rather than a Japanese court, 354 U. S.,

at 529, but this Court found no “constitutional or statutory” impediment to the Government’s waiver of its jurisdiction in light of Japan’s

sovereign interest in prosecuting crimes committed within its borders, id., at 530. Pp. 26–28. 

No. 06–1666, 482 F. 3d 582; No. 07–394, 479 F. 3d 1, vacated and 

remanded. 

ROBERTS, C. J., delivered the opinion for a unanimous Court. 

SOUTER, J., filed a concurring opinion, in which GINSBURG and BREYER, 

JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 06–1666 and 07–394 

MOHAMMAD MUNAF, ET AL., PETITIONERS 

06–1666 v. 

PETE GEREN, SECRETARY OF THE 

ARMY, ET AL. 

PETE GEREN, SECRETARY OF THE ARMY, ET AL., 

PETITIONERS 

07–394 v. 

SANDRA K. OMAR AND AHMED S. OMAR, AS 

NEXT FRIENDS OF SHAWQI AHMAD OMAR 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 12, 2008] 

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court. 

The Multinational Force–Iraq (MNF–I) is an international coalition force operating in Iraq composed of 26

different nations, including the United States. The force 

operates under the unified command of United States

military officers, at the request of the Iraqi Government, 

and in accordance with United Nations (U. N.) Security

Council Resolutions. Pursuant to the U. N. mandate, 

MNF–I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation 

and prosecution in Iraqi courts under Iraqi law.

These consolidated cases concern the availability of 
 

 

2 MUNAF v. GEREN 

Opinion of the Court 

habeas corpus relief arising from the MNF–I’s detention of 

American citizens who voluntarily traveled to Iraq and are

alleged to have committed crimes there. We are confronted with two questions. First, do United States courts 

have jurisdiction over habeas corpus petitions filed on 

behalf of American citizens challenging their detention in

Iraq by the MNF–I? Second, if such jurisdiction exists, 

may district courts exercise that jurisdiction to enjoin the

MNF–I from transferring such individuals to Iraqi custody

or allowing them to be tried before Iraqi courts? 

We conclude that the habeas statute extends to American citizens held overseas by American forces operating 

subject to an American chain of command, even when 

those forces are acting as part of a multinational coalition. 

Under circumstances such as those presented here, however, habeas corpus provides petitioners with no relief. 

I 

Pursuant to its U. N. mandate, the MNF–I has “‘the 

authority to take all necessary measures to contribute to

the maintenance of security and stability in Iraq.’” App. G 

to Pet. for Cert. in 07–394, p. 74a, ¶10 (quoting U. N.

Security Council, U. N. Doc. S/Res/1546, ¶10 (June 2004)).

To this end, the MNF–I engages in a variety of military

and humanitarian activities. The multinational force, for 

example, conducts combat operations against insurgent 

factions, trains and equips Iraqi security forces, and aids

in relief and reconstruction efforts. 

MNF–I forces also detain individuals who pose a threat 

to the security of Iraq. The Government of Iraq retains

ultimate responsibility for the arrest and imprisonment of 

individuals who violate its laws, but because many of 

Iraq’s prison facilities have been destroyed, the MNF–I 

agreed to maintain physical custody of many such individuals during Iraqi criminal proceedings. MNF–I forces 

are currently holding approximately 24,000 detainees. An 
Cite as: 553 U. S. ____ (2008) 3 

Opinion of the Court 

American military unit, Task Force 134, oversees detention operations and facilities in Iraq, including those 

located at Camp Cropper, the detention facility currently

housing Shawqi Omar and Mohammad Munaf (hereinafter petitioners). The unit is under the command of 

United States military officers who report to General 

David Petraeus. 

A 

Petitioner Shawqi Omar, an American-Jordanian citizen, voluntarily traveled to Iraq in 2002. In October 2004, 

Omar was captured and detained in Iraq by U. S. military 

forces operating as part of the MNF–I during a raid of his 

Baghdad home. Omar is believed to have provided aid to

Abu Musab al-Zarqawi—the late leader of al Qaeda in 

Iraq—by facilitating his group’s connection with other 

terrorist groups, bringing foreign fighters into Iraq, and 

planning and executing kidnappings in Iraq. MNF–I 

searched his home in an effort to capture and detain insurgents who were associated with al-Zarqawi. The raid 

netted an Iraqi insurgent and four Jordanian fighters

along with explosive devices and other weapons. 

The captured insurgents gave sworn statements implicating Omar in insurgent cell activities. The four Jordanians testified that they had traveled to Iraq with Omar to 

commit militant acts against American and other Coalition Forces. Each of the insurgents stated that, while

living in Omar’s home, they had surveilled potential kidnap victims and conducted weapons training. The insurgents explained that Omar’s fluency in English allowed 

him to lure foreigners to his home in order to kidnap and 

sell them for ransom. 

Following Omar’s arrest, a three-member MNF–I Tribunal composed of American military officers concluded

that Omar posed a threat to the security of Iraq and designated him a “security internee.” The tribunal also found 

that Omar had committed hostile and warlike acts, and 
 

4 MUNAF v. GEREN 

Opinion of the Court 

that he was an enemy combatant in the war on terrorism. 

In accordance with Article 5 of the Geneva Convention, 

Omar was permitted to hear the basis for his detention, make a statement, and call immediately available 

witnesses. 

In addition to the review of his detention by the MNF–I 

Tribunal, Omar received a hearing before the Combined 

Review and Release Board (CRRB)—a nine-member board 

composed of six representatives of the Iraqi Government 

and three MNF–I officers. The CRRB, like the MNF–I 

Tribunal, concluded that Omar’s continued detention was 

necessary because he posed a threat to Iraqi security. At 

all times since his capture, Omar has remained in the 

custody of the United States military operating as part of 

the MNF–I. 

Omar’s wife and son filed a next-friend petition for a

writ of habeas corpus on Omar’s behalf in the District

Court for the District of Columbia. Omar v. Harvey, 479 

F. 3d 1, 4 (CADC 2007). After the Department of Justice

informed Omar that the MNF–I had decided to refer him 

to the Central Criminal Court of Iraq (CCCI) for criminal

proceedings, his attorney sought and obtained a preliminary injunction barring Omar’s “remov[al] . . . from United 

States or MNF-I custody.” App. to Pet. in No. 07–394, 

supra, at 59a. The order directed that 

“the [United States], their agents, servants, employees, confederates, and any persons acting in concert or 

participation with them, or having actual or implicit 

knowledge of this Order . . . shall not remove [Omar]

from United States or MNF-I custody, or take any 

other action inconsistent with this court’s memorandum opinion.” Ibid. 

The United States appealed and the Court of Appeals

for the District of Columbia Circuit affirmed. Omar, 479 

F. 3d 1. The Court of Appeals first upheld the District 
 

Cite as: 553 U. S. ____ (2008) 5 

Opinion of the Court 

Court’s exercise of habeas jurisdiction, finding that this

Court’s decision in Hirota v. MacArthur, 338 U. S. 197 

(1948) (per curiam), did not preclude review. The Court of 

Appeals distinguished Hirota on the ground that Omar,

unlike the petitioner in that case, had yet to be convicted

by a foreign tribunal. 479 F. 3d, at 7–9. The Court of 

Appeals recognized, however, that the writ of habeas 

corpus could not be used to enjoin release. Id., at 11. It 

therefore construed the injunction only to bar transfer to

Iraqi custody and upheld the District Court’s order insofar

as it prohibited the United States from: (1) transferring 

Omar to Iraqi custody, id., at 11–13; (2) sharing details

concerning any decision to release Omar with the Iraqi

Government, id., at 13; and (3) presenting Omar to the 

Iraqi Courts for investigation and prosecution, id., at 14. 

Judge Brown dissented. She joined the panel’s jurisdictional ruling, but would have vacated the injunction because, in her view, the District Court had no authority to

enjoin a transfer that would allow Iraqi officials to take 

custody of an individual captured in Iraq—something the 

Iraqi Government “undeniably h[ad] a right to do.” Id., at 

19. We granted certiorari. 552 U. S. ___ (2007). 

B 

Petitioner Munaf, a citizen of both Iraq and the United

States, voluntarily traveled to Iraq with several Romanian

journalists. He was to serve as the journalists’ translator 

and guide. Shortly after arriving in Iraq, the group

was kidnapped and held captive for two months. After 

the journalists were freed, MNF–I forces detained 

Munaf based on their belief that he had orchestrated the 

kidnappings.

A three-judge MNF–I Tribunal conducted a hearing to

determine whether Munaf’s detention was warranted. 

The MNF–I Tribunal reviewed the facts surrounding 

Munaf’s capture, interviewed witnesses, and considered 
 

 

6 MUNAF v. GEREN 

Opinion of the Court 

the available intelligence information. Munaf was present 

at the hearing and had an opportunity to hear the grounds

for his detention, make a statement, and call immediately 

available witnesses. At the end of the hearing, the tribunal found that Munaf posed a serious threat to Iraqi security, designated him a “security internee,” and referred

his case to the CCCI for criminal investigation and

prosecution.

During his CCCI trial, Munaf admitted on camera and 

in writing that he had facilitated the kidnapping of the 

Romanian journalists. He also appeared as a witness 

against his alleged co-conspirators. Later in the proceedings, Munaf recanted his confession, but the CCCI nonetheless found him guilty of kidnapping. On appeal, the

Iraqi Court of Cassation vacated Munaf’s conviction and

remanded his case to the CCCI for further investigation. 

In re Hikmat, No. 19/Pub. Comm’n/2007, p. 5 (Feb. 19, 

2008). The Court of Cassation directed that Munaf was to 

“remain in custody pending the outcome” of further criminal proceedings. Ibid.

 Meanwhile, Munaf’s sister filed a next-friend petition

for a writ of habeas corpus in the District Court for the 

District of Columbia. Mohammed v. Harvey, 456 F. Supp.

2d 115, 118 (2006). The District Court dismissed the 

petition for lack of jurisdiction, finding that this Court’s

decision in Hirota controlled: Munaf was “in the custody of

coalition troops operating under the aegis of MNF–I, who

derive their ultimate authority from the United Nations

and the MNF-I member nations acting jointly.” 456 

F. Supp. 2d, at 122. 

The Court of Appeals for the District of Columbia Circuit affirmed. 482 F. 3d 582 (2007) (hereinafter Muraf).

The Court of Appeals, “[c]onstrained by precedent,” agreed

with the District Court that Hirota controlled and dismissed Munaf’s petition for lack of jurisdiction. 482 F. 3d, 

at 583. It distinguished the prior opinion in Omar on the 
 

Cite as: 553 U. S. ____ (2008) 7 

Opinion of the Court 

ground that Munaf, like the habeas petitioner in Hirota 

but unlike Omar, had been convicted by a foreign tribunal. 

482 F. 3d, at 583–584. 

Judge Randolph concurred in the judgment. Id., at 585. 

He concluded that the District Court had improperly 

dismissed for want of jurisdiction because “Munaf is an

American citizen . . . held by American forces overseas.” 

Ibid. Nevertheless, Judge Randolph would have held that 

Munaf’s habeas petition failed on the merits. Id., at 586. 

He relied on this Court’s holding in Wilson v. Girard, 354 

U. S. 524, 529 (1957), that a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders,” and concluded that the fact 

that the United States was holding Munaf because of his 

conviction by a foreign tribunal was conclusive. Ibid.1 

We granted certiorari and consolidated the Omar and 

Munaf cases. 552 U. S. ___ (2007). 

II 

The Solicitor General argues that the federal courts lack

jurisdiction over the detainees’ habeas petitions because 

the American forces holding Omar and Munaf operate as 

part of a multinational force. Brief for Federal Parties 17– 

36. The habeas statute provides that a federal district 

court may entertain a habeas application by a person held 

“in custody under or by color of the authority of the United

States,” or “in custody in violation of the Constitution or 

laws or treaties of the United States.” 28 U. S. C. 

§§2241(c)(1), (3). MNF–I forces, the argument goes, “are 

not operating solely under United States authority, but 

rather ‘as the agent of’ a multinational force.” Brief for 

Federal Parties 23 (quoting Hirota, supra, at 198). Omar 

and Munaf are thus held pursuant to international au­

—————— 

1As noted above, Munaf’s conviction was subsequently vacated by an

Iraqi appellate court, and he is awaiting a new trial. 
 

8 MUNAF v. GEREN 

Opinion of the Court 

thority, not “the authority of the United States,” 

§2241(c)(1), and they are therefore not within the reach of

the habeas statute. Brief for Federal Parties 17–18.2 

The United States acknowledges that Omar and Munaf 

are American citizens held overseas in the immediate 

“‘physical custody’” of American soldiers who answer only 

to an American chain of command. Id., at 21. The MNF–I 

itself operates subject to a unified American command. 

Id., at 23. “[A]s a practical matter,” the Government

concedes, it is “the President and the Pentagon, the Secretary of Defense, and the American commanders that control what . . . American soldiers do,” Tr. of Oral Arg. 15,

including the soldiers holding Munaf and Omar. In light

of these admissions, it is unsurprising that the United

States has never argued that it lacks the authority to

release Munaf or Omar, or that it requires the consent of

other countries to do so. 

We think these concessions the end of the jurisdictional

inquiry. The Government’s argument—that the federal 

courts have no jurisdiction over American citizens held by 

American forces operating as multinational agents—is not 

easily reconciled with the text of §2241(c)(1). See Duncan 

v. Walker, 533 U. S. 167, 172 (2001) (“We begin, as always,

with the language of the statute”). That section applies to

persons held “in custody under or by color of the authority 

of the United States.” §2241(c)(1). An individual is held 

“in custody” by the United States when the United States

official charged with his detention has “the power to produce” him. Wales v. Whitney, 114 U. S. 564, 574 (1885);

see also §2243 (“The writ . . . shall be directed to the person having custody of the person detained”). The disjunctive “or” in §2241(c)(1) makes clear that actual custody by 

—————— 

2These cases concern only American citizens and only the statutory 

reach of the writ. Nothing herein addresses jurisdiction with respect to

alien petitioners or with respect to the constitutional scope of the writ. 
 

Cite as: 553 U. S. ____ (2008) 9 

Opinion of the Court 

the United States suffices for jurisdiction, even if that

custody could be viewed as “under . . . color of” another 

authority, such as the MNF–I. 

The Government’s primary contention is that the District Courts lack jurisdiction in these cases because of this 

Court’s decision in Hirota. That slip of a case cannot bear 

the weight the Government would place on it. In Hirota, 

Japanese citizens sought permission to file habeas corpus

applications directly in this Court. The petitioners were

noncitizens detained in Japan. They had been convicted 

and sentenced by the International Military Tribunal for 

the Far East—an international tribunal established by

General Douglas MacArthur acting, as the Court put it, in 

his capacity as “the agent of the Allied Powers.” 338 U. S., 

at 198. Although those familiar with the history of the 

period would appreciate the possibility of confusion over 

who General MacArthur took orders from, the Court concluded that the sentencing tribunal was “not a tribunal of

the United States.” Ibid. The Court then held that, 

“[u]nder the foregoing circumstances,” United States

courts had “no power or authority to review, to affirm, set

aside or annul the judgments and sentences” imposed by

that tribunal. Ibid. Accordingly, the Court denied petitioners leave to file their habeas corpus applications, 

without further legal analysis. Ibid. 

The Government argues that the multinational character of the MNF–I, like the multinational character of the 

tribunal at issue in Hirota, means that it too is not a 

United States entity subject to habeas. Reply Brief for

Federal Parties 5–7. In making this claim, the Government acknowledges that the MNF–I is subject to American

authority, but contends that the same was true of the 

tribunal at issue in Hirota. In Hirota, the Government 

notes, the petitioners were held by the United States

Eighth Army, which took orders from General MacArthur,

338 U. S., at 199 (Douglas, J., concurring), and were sub­
 

10 MUNAF v. GEREN 

Opinion of the Court 

ject to an “unbroken” chain of U. S. command, ending with

the President of the United States, id., at 207. 

 The Court in Hirota, however, may have found it significant, in considering the nature of the tribunal established 

by General MacArthur, that the Solicitor General expressly contended that General MacArthur, as pertinent,

was not subject to United States authority. The facts 

suggesting that the tribunal in Hirota was subject to an

“unbroken” United States chain of command were not 

among the “foregoing circumstances” cited in the per 

curiam opinion disposing of the case, id., at 198. They

were highlighted only in Justice Douglas’s belated opinion 

concurring in the result, published five months after that 

per curiam. Id., at 199, n.*. Indeed, arguing before this

Court, Solicitor General Perlman stated that General 

MacArthur did not serve “under the Joint Chiefs of Staff,” 

that his duty was “to obey the directives of the Far Eastern Commission and not our War Department,” and that 

“no process that could be issued from this court . . . would 

have any effect on his action.” Tr. of Oral Arg. in Hirota v. 

MacArthur, O. T. 1948, No. 239, pp. 42, 50, 51. Here, in 

contrast, the Government acknowledges that our military 

commanders do answer to the President. 

Even if the Government is correct that the international 

authority at issue in Hirota is no different from the international authority at issue here, the present “circumstances” differ in another respect. These cases concern 

American citizens while Hirota did not, and the Court has 

indicated that habeas jurisdiction can depend on citizenship. See Johnson v. Eisentrager, 339 U. S. 763, 781 

(1950); Rasul v. Bush, 542 U. S. 466, 486 (2004)

(KENNEDY, J., concurring in judgment). See also Munaf, 

482 F. 3d, at 584 (“[W]e do not mean to suggest that we

find the logic of Hirota especially clear or compelling, 

particularly as applied to American citizens”); id., at 585 
Cite as: 553 U. S. ____ (2008) 11 

Opinion of the Court 

(Randolph, J., concurring in judgment).3 “Under the foregoing circumstances,” we decline to extend our holding in 

Hirota to preclude American citizens held overseas by 

American soldiers subject to a United States chain of 

command from filing habeas petitions. 

III 

We now turn to the question whether United States

district courts may exercise their habeas jurisdiction to 

enjoin our Armed Forces from transferring individuals

detained within another sovereign’s territory to that sovereign’s government for criminal prosecution. The nature 

of that question requires us to proceed “with the circumspection appropriate when this Court is adjudicating 

issues inevitably entangled in the conduct of our international relations.” Romero v. International Terminal Operating Co., 358 U. S. 354, 383 (1959). Here there is the 

further consideration that those issues arise in the context 

of ongoing military operations conducted by American 

Forces overseas. We therefore approach these questions

cognizant that “courts traditionally have been reluctant to 

intrude upon the authority of the Executive in military 

and national security affairs.” Department of Navy v. 

Egan, 484 U. S. 518, 530 (1988). 

In Omar, the District Court granted and the D. C. Circuit upheld a preliminary injunction that, as interpreted 

by the Court of Appeals, prohibited the United States from 

—————— 

3The circumstances in Hirota differ in yet another respect. The petitioners in that case sought an original writ, filing their motions for 

leave to file habeas petitions “in this Court.” 338 U. S., at 198. There 

is, however, some authority for the proposition that this Court has 

original subject-matter jurisdiction only over “ ‘cases affecting ambassadors, other public ministers and consuls, and those in which a state

shall be a party,’ ” Marbury v. Madison, 1 Cranch 137, 174 (1803)

(quoting U. S. Const., Art. III, §2, cl. 2), and Congress had not granted 

the Court appellate jurisdiction to review decisions of the International

Military Tribunal for the Far East. 
 

 

12 MUNAF v. GEREN 

Opinion of the Court 

(1) effectuating “Omar’s transfer in any form, whether by 

an official handoff or otherwise,” to Iraqi custody, 479

F. 3d, at 12; (2) sharing details concerning any decision to 

release Omar with the Iraqi Government, id., at 13; and 

(3) “presenting Omar to the [Iraqi courts] for trial,” id., at 

14. This is not a narrow injunction. Even the habeas 

petitioners do not defend it in its entirety. They acknowledge the authority of the Iraqi courts to begin criminal 

proceedings against Omar and wisely concede that any

injunction “clearly need not include a bar on ‘informationsharing.’” Brief for Habeas Petitioners 61. As Judge

Brown noted in her dissent, such a bar would impermissibly “enjoin the United States military from sharing information with an allied foreign sovereign in a war zone.” 

Omar, supra, at 18. 

We begin with the basics. A preliminary injunction is

an “extraordinary and drastic remedy,” 11A C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure §2948, 

p. 129 (2d ed. 1995) (hereinafter Wright & Miller) (footnotes omitted); it is never awarded as of right, Yakus v. 

United States, 321 U. S. 414, 440 (1944). Rather, a party

seeking a preliminary injunction must demonstrate, 

among other things, “a likelihood of success on the merits.” 

Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 428 (2006) (citing Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam); Doran v. 

Salem Inn, Inc., 422 U. S. 922, 931 (1975)). But one 

searches the opinions below in vain for any mention of a 

likelihood of success as to the merits of Omar’s habeas 

petition. Instead, the District Court concluded that the 

“jurisdictional issues” presented questions “so serious, 

substantial, difficult and doubtful, as to make them fair 

ground for litigation and thus for more deliberative investigation.” Omar v. Harvey, 416 F. Supp. 2d 19, 23–24, 27 

(DC 2006) (internal quotation marks omitted; emphasis 

added). 
 

Cite as: 553 U. S. ____ (2008) 13 

Opinion of the Court 

The D. C. Circuit made the same mistake. In that 

court’s view, the “only question before [it] at th[at] stage of

the litigation relate[d] to the district court’s jurisdiction.”

479 F. 3d, at 11. As a result, the Court of Appeals held 

that it “need not address” the merits of Omar’s habeas 

claims: those merits had “no relevance.” Ibid. 

A difficult question as to jurisdiction is, of course, no

reason to grant a preliminary injunction. It says nothing 

about the “likelihood of success on the merits,” other than 

making such success more unlikely due to potential impediments to even reaching the merits. Indeed, if all a 

“likelihood of success on the merits” meant was that the 

district court likely had jurisdiction, then preliminary 

injunctions would be the rule, not the exception. In light

of these basic principles, we hold that it was an abuse of 

discretion for the District Court to grant a preliminary

injunction on the view that the “jurisdictional issues” in 

Omar’s case were tough, without even considering the

merits of the underlying habeas petition.

What we have said thus far would require reversal and 

remand in each of these cases: The lower courts in Munaf 

erred in dismissing for want of jurisdiction, and the lower 

courts in Omar erred in issuing and upholding the preliminary injunction. There are occasions, however, when 

it is appropriate to proceed further and address the merits. This is one of them. 

Our authority to address the merits of the habeas petitioners’ claims is clear. Review of a preliminary injunction 

“is not confined to the act of granting the injunctio[n], but 

extends as well to determining whether there is any insuperable objection, in point of jurisdiction or merits, to the

maintenance of [the] bill, and, if so, to directing a final

decree dismissing it.” City and County of Denver v. New 

York Trust Co., 229 U. S. 123, 136 (1913). See also Deckert 

v. Independence Shares Corp., 311 U. S. 282, 287 (1940) 

(“‘If insuperable objection to maintaining the bill clearly 
 

14 MUNAF v. GEREN 

Opinion of the Court 

appears, it may be dismissed and the litigation terminated’” (quoting Meccano, Ltd. v. John Wanamaker, N. Y., 

253 U. S. 136, 141 (1920))). This has long been the rule:

“By the ordinary practice in equity as administered in 

England and this country,” a reviewing court has the 

power on appeal from an interlocutory order “to examine

the merits of the case . . . and upon deciding them in favor

of the defendant to dismiss the bill.” North Carolina R. 

Co. v. Story, 268 U. S. 288, 292 (1925). Indeed, “[t]he 

question whether an action should be dismissed for failure 

to state a claim is one of the most common issues that may

be reviewed on appeal from an interlocutory injunction 

order.” 16 Wright & Miller, Jurisdiction and Related

Matters, §3921.1, at 32 (2d ed. 1996).

Adjudication of the merits is most appropriate if the 

injunction rests on a question of law and it is plain that 

the plaintiff cannot prevail. In such cases, the defendant 

is entitled to judgment. See, e.g., Deckert, supra, at 287; 

North Carolina R. Co., supra, at 292; City and County of 

Denver, supra, at 136. 

Given that the present cases involve habeas petitions

that implicate sensitive foreign policy issues in the context 

of ongoing military operations, reaching the merits is the

wisest course. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 584–585 (1952) (finding the case ripe

for merits review on appeal from stay of preliminary injunction). For the reasons we explain below, the relief 

sought by the habeas petitioners makes clear under our 

precedents that the power of the writ ought not to be

exercised. Because the Government is entitled to judgment as a matter of law, it is appropriate for us to terminate the litigation now. 

IV 

The habeas petitioners argue that the writ should be 

granted in their cases because they have “a legally en­
Cite as: 553 U. S. ____ (2008) 15 

Opinion of the Court 

forceable right” not to be transferred to Iraqi authority for 

criminal proceedings under both the Due Process Clause 

and the Foreign Affairs Reform and Restructuring Act of

1998 (FARR Act), div. G, 112 Stat. 2681–761, and because 

they are innocent civilians who have been unlawfully 

detained by the United States in violation of the Due 

Process Clause. Brief for Habeas Petitioners 48–52. With 

respect to the transfer claim, petitioners request an injunction prohibiting the United States from transferring

them to Iraqi custody. With respect to the unlawful detention claim, petitioners seek “release”—but only to the 

extent that release would not result in “unlawful” transfer 

to Iraqi custody. Tr. of Oral Arg. 48. Both of these requests would interfere with Iraq’s sovereign right to “punish offenses against its laws committed within its borders.” Wilson, 354 U. S., at 529. We accordingly hold that

the detainees’ claims do not state grounds upon which

habeas relief may be granted, that the habeas petitions

should have been promptly dismissed, and that no injunction should have been entered. 

A 

Habeas corpus is “governed by equitable principles.” Fay 

v. Noia, 372 U. S. 391, 438 (1963). We have therefore 

recognized that “prudential concerns,” Withrow v. Williams, 507 U. S. 680, 686 (1993), such as comity and the

orderly administration of criminal justice, may “require a 

federal court to forgo the exercise of its habeas corpus 

power,” Francis v. Henderson, 425 U. S. 536, 539 (1976).

The principle that a habeas court is “not bound in every 

case” to issue the writ, Ex parte Royall, 117 U. S. 241, 251 

(1886), follows from the precatory language of the habeas

statute, and from its common-law origins. The habeas 

statute provides only that a writ of habeas corpus “may be 

granted,” §2241(a) (emphasis added), and directs federal 

courts to “dispose of [habeas petitions] as law and justice 
 

16 MUNAF v. GEREN 

Opinion of the Court 

require,” §2243. See Danforth v. Minnesota, 552 U. S. ___, 

___ (2008) (slip op., at 13–14). Likewise, the writ did not 

issue in England “as of mere course,” but rather required

the petitioner to demonstrate why the “extraordinary

power of the crown” should be exercised, 3 W. Blackstone, 

Commentaries on the Laws of England 132 (1768); even

then, courts were directed to “do as to justice shall appertain,” 1 id., at 131 (1765). The question, therefore, even

where a habeas court has the power to issue the writ, is 

“whether this be a case in which [that power] ought to be

exercised.” Ex parte Watkins, 3 Pet. 193, 201 (1830) (Marshall, C. J.).

At the outset, the nature of the relief sought by the

habeas petitioners suggests that habeas is not appropriate 

in these cases. Habeas is at its core a remedy for unlawful 

executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 

536 (2004) (plurality opinion). The typical remedy for 

such detention is, of course, release. See, e.g., Preiser v. 

Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he traditional

function of the writ is to secure release from illegal custody”). But here the last thing petitioners want is simple 

release; that would expose them to apprehension by Iraqi 

authorities for criminal prosecution—precisely what petitioners went to federal court to avoid. At the end of the 

day, what petitioners are really after is a court order

requiring the United States to shelter them from the

sovereign government seeking to have them answer for 

alleged crimes committed within that sovereign’s borders.

The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within 

the sovereign territory of Iraq today, or that they are

alleged to have committed serious crimes in Iraq. Indeed, 

Omar and Munaf both concede that, if they were not in

MNF–I custody, Iraq would be free to arrest and prosecute 

them under Iraqi law. See Tr. in Omar, No. 06–5126 

(CADC), pp. 48–49, 59 (Sept. 11, 2006); Tr. in Mohammed, 
Cite as: 553 U. S. ____ (2008) 17 

Opinion of the Court 

No. 06–1455 (DC), pp. 15–16 (Oct. 10, 2006). There is, 

moreover, no question that Munaf is the subject of ongoing 

Iraqi criminal proceedings and that Omar would be but for 

the present injunction. Munaf was convicted by the CCCI,

and while that conviction was overturned on appeal, his

case was remanded to and is again pending before the 

CCCI. The MNF–I referred Omar to the CCCI for prosecution at which point he sought and obtained an injunction that prohibits his prosecution. See 479 F. 3d, at 16, 

n. 3 (Brown, J., dissenting in part) (“‘[Omar] has not yet 

had a trial or even an investigative hearing in the CCCI

due to the district court’s unprecedented injunction’” 

(citing Opposition to Petitioner’s Emergency Motion for 

Injunctive Relief 18–19, in Munaf v. Harvey, No. 06–5324 

(CADC, Oct. 25, 2006))).

Given these facts, our cases make clear that Iraq has a 

sovereign right to prosecute Omar and Munaf for crimes

committed on its soil. As Chief Justice Marshall explained

nearly two centuries ago, “[t]he jurisdiction of the nation 

within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 

136 (1812). See Wilson, supra, at 529 (“A sovereign nation

has exclusive jurisdiction to punish offenses against its 

laws committed within its borders, unless it expressly or

impliedly consents to surrender its jurisdiction”); Reid v. 

Covert, 354 U. S. 1, 15, n. 29 (1957) (opinion of Black, J.) 

(“[A] foreign nation has plenary criminal jurisdiction . . . 

over all Americans . . . who commit offenses against its 

laws within its territory”); Kinsella v. Krueger, 351 U. S. 

470, 479 (1956) (nations have a “sovereign right to try and 

punish [American citizens] for offenses committed within 

their borders,” unless they “have relinquished [their] 

jurisdiction” to do so).

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 
 

 

 

 

 

18 MUNAF v. GEREN 

Opinion of the Court 

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.” Neely v. Henkel, 180 U. S. 109, 

123 (1901).

The habeas petitioners nonetheless argue that the Due

Process Clause includes a “[f]reedom from unlawful transfer” that is “protected wherever the government seizes a 

citizen.” Brief for Habeas Petitioners 48. We disagree.

Not only have we long recognized the principle that a 

nation state reigns sovereign within its own territory, we

have twice applied that principle to reject claims that the 

Constitution precludes the Executive from transferring a

prisoner to a foreign country for prosecution in an allegedly unconstitutional trial.

In Wilson, 354 U. S. 524, we reversed an injunction

similar to the one at issue here. During a cavalry exercise 

at the Camp Weir range in Japan, Girard, a Specialist 

Third Class in the United States Army, caused the death

of a Japanese woman. Id., at 525–526. After Japan indicted Girard, but while he was still in United States 

custody, Girard filed a writ of habeas corpus in the United

States District Court for the District of Columbia. Ibid. 

The District Court granted a preliminary injunction 

against the United States, enjoining the “proposed delivery of [Girard] to the Japanese Government.” Girard v. 

Wilson, 152 F. Supp. 21, 27 (DC 1957). In the District 

Court’s view, to permit the transfer to Japanese authority

would violate the rights guaranteed to Girard by the

Constitution. Ibid. 

We granted certiorari, and vacated the injunction. 354 

U. S., at 529–530. We noted that Japan had exclusive 

jurisdiction “to punish offenses against its laws committed

within its borders,” unless it had surrendered that jurisdiction. Id., at 529. Consequently, even though Japan 
Cite as: 553 U. S. ____ (2008) 19 

Opinion of the Court 

had ceded some of its jurisdiction to the United States

pursuant to a bilateral Status of Forces Agreement, the

United States could waive that jurisdiction—as it had

done in Girard’s case—and the habeas court was without 

authority to enjoin Girard’s transfer to the Japanese 

authorities. Id., at 529–530. 

 Likewise, in Neely v. Henkel, supra, this Court held that 

habeas corpus was not available to defeat the criminal

jurisdiction of a foreign sovereign, even when application

of that sovereign’s law would allegedly violate the Constitution. Neely—the habeas petitioner and an American 

citizen—was accused of violating Cuban law in Cuba. Id., 

at 112–113. He was arrested and detained in the United 

States. Id., at 113. The United States indicated its intent 

to extradite him, and Neely filed suit seeking to block his

extradition on the grounds that Cuban law did not provide 

the panoply of rights guaranteed him by the Constitution

of the United States. Id., at 122. We summarily rejected 

this claim: “The answer to this suggestion is that those 

[constitutional] provisions have no relation to crimes

committed without the jurisdiction of the United States 

against the laws of a foreign country.” Ibid. Neely alleged 

no claim for which a “discharge on habeas corpus” could 

issue. Id., at 125. Accordingly, the United States was free 

to transfer him to Cuban custody for prosecution.

In the present cases, the habeas petitioners concede that

Iraq has the sovereign authority to prosecute them for 

alleged violations of its law, yet nonetheless request an

injunction prohibiting the United States from transferring 

them to Iraqi custody. But as the foregoing cases make 

clear, 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. 

Petitioners’ “release” claim adds nothing to their “transfer” claim. That claim fails for the same reasons the 
 

20 MUNAF v. GEREN 

Opinion of the Court 

transfer claim fails, given that the release petitioners seek 

is release in a form that would avoid transfer. See Tr. of 

Oral Arg. 47–48; App. 40 (coupling Munaf’s claim for 

release with a request for order requiring the United

States to bring him to a U. S. court); App. 123 (same with

respect to Omar). Such “release” would impermissibly 

interfere with Iraq’s “exclusive jurisdiction to punish

offenses against its laws committed within its borders,” 

Wilson, supra, at 529; the “release” petitioners seek is 

nothing less than an order commanding our forces to

smuggle them out of Iraq. Indeed, the Court of Appeals in 

Omar’s case took the extraordinary step of upholding an 

injunction that prohibited the Executive from releasing 

Omar—the quintessential habeas remedy—if the United 

States shared information about his release with its military ally, Iraq. 479 F. 3d, at 13. Habeas does not require

the United States to keep an unsuspecting nation in the 

dark when it releases an alleged criminal insurgent within

its borders. 

Moreover, because Omar and Munaf are being held by

United States Armed Forces at the behest of the Iraqi 

Government pending their prosecution in Iraqi courts, 

Mohammed, 456 F. Supp. 2d, at 117, release of any kind 

would interfere with the sovereign authority of Iraq “to

punish offenses against its laws committed within its

borders,” Wilson, supra, at 529. This point becomes clear

given that the MNF–I, pursuant to its U. N. mandate, is 

authorized to “take all necessary measures to contribute to 

the maintenance of security and stability in Iraq,” App. G 

to Pet. for Cert. in No. 07–394, p. 74a, ¶10, and specifically

to provide for the “internment [of individuals in Iraq] 

where this is necessary for imperative reasons of security,” 

id., at 86a. 

While the Iraqi Government is ultimately “responsible

for [the] arrest, detention and imprisonment” of individuals who violate its laws, S. C. Res. 1790, Annex I, ¶4, p. 6, 
Cite as: 553 U. S. ____ (2008) 21 

Opinion of the Court 

U. N. Doc. S/RES/1790 (Dec. 18, 2007), the MNF–I maintains physical custody of individuals like Munaf and Omar

while their cases are being heard by the CCCI, Mohammed, supra, at 117. Indeed, Munaf is currently held at

Camp Cropper pursuant to the express order of the Iraqi

Courts. See In re Hikmat, No. 19/Pub. Comm’n/2007, at 5

(directing that Munaf “remain in custody pending the

outcome” of further Iraqi proceedings). As that court order 

makes clear, MNF–I detention is an integral part of the 

Iraqi system of criminal justice. MNF–I forces augment

the Iraqi Government’s peacekeeping efforts by functioning, in essence, as its jailor. Any requirement that the

MNF–I release a detainee would, in effect, impose a release order on the Iraqi Government. 

The habeas petitioners acknowledge that some interference with a foreign criminal system is too much. They

concede that “it is axiomatic that an American court does 

not provide collateral review of proceedings in a foreign 

tribunal.” Brief for Habeas Petitioners 39 (citing Republic 

of Austria v. Altmann, 541 U. S. 677, 700 (2004)). We 

agree, but see no reason why habeas corpus should permit

a prisoner detained within a foreign sovereign’s territory

to prevent a trial from going forward in the first place. It 

did not matter that the habeas petitioners in Wilson and 

Neely had not been convicted. 354 U. S., at 525–526; 180 

U. S., at 112–113. Rather, “the same principles of comity

and respect for foreign sovereigns that preclude judicial

scrutiny of foreign convictions necessarily render invalid 

attempts to shield citizens from foreign prosecution in

order to preempt such nonreviewable adjudications.” 

Omar, 479 F. 3d, at 17 (Brown, J., dissenting in part). 

To allow United States courts to intervene in an ongoing

foreign criminal proceeding and pass judgment on its

legitimacy seems at least as great an intrusion as the

plainly barred collateral review of foreign convictions. See 

Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 417– 
 

 

 

 

 

22 MUNAF v. GEREN 

Opinion of the Court 

418 (1964) (“‘To permit the validity of the acts of one

sovereign State to be reexamined and perhaps condemned 

by the courts of another would very certainly “imperil the 

amicable relations between governments and vex the

peace of nations”’” (quoting Oetjen v. Central Leather Co., 

246 U. S. 297, 303–304 (1918); punctuation omitted)).4 

There is of course even more at issue here: Neither 

Neely nor Wilson concerned individuals captured and 

detained within an ally’s territory during ongoing hostilities involving our troops. Neely involved a charge of embezzlement; Wilson the peacetime actions of a serviceman. 

Yet in those cases we held that the Constitution allows the 

Executive to transfer American citizens to foreign authorities for criminal prosecution. It would be passing strange

to hold that the Executive lacks that same authority 

where, as here, the detainees were captured by our Armed 

Forces for engaging in serious hostile acts against an ally 

in what the Government refers to as “an active theater of 

combat.” Brief for Federal Parties 16. 

Such a conclusion would implicate not only concerns 

about interfering with a sovereign’s recognized prerogative 

to apply its criminal law to those alleged to have committed crimes within its borders, but also concerns about 

unwarranted judicial intrusion into the Executive’s ability 

to conduct military operations abroad. Our constitutional 

framework “requires that the judiciary be as scrupulous

not to interfere with legitimate Army matters as the Army 

—————— 

4The habeas petitioners claim that the injunction only bars Omar’s 

presentation to the Iraqi courts and that the CCCI trial can go forward

in Omar’s absence. The injunction is not so easily narrowed. It was 

entered on the theory that Omar might be “presented to the CCCI and

in that same day, be tried, [and] convicted,” thus depriving the United

States district courts of jurisdiction. Omar v. Harvey, 416 F. Supp. 2d 

19, 29 (DC 2006). Petitioners’ interpretation makes no sense under 

that theory: If a conviction would deprive the habeas court of jurisdiction, a trial, with or without the defendant, could result in just such a

jurisdiction-divesting order. 
 

 

Cite as: 553 U. S. ____ (2008) 23 

Opinion of the Court 

must be scrupulous not to intervene in judicial matters.” 

Orloff v. Willoughby, 345 U. S. 83, 94 (1953). Those who 

commit crimes within a sovereign’s territory may be transferred to that sovereign’s government for prosecution;

there is hardly an exception to that rule when the crime at

issue is not embezzlement but unlawful insurgency directed against an ally during ongoing hostilities involving 

our troops. 

B 

1 

Petitioners contend that these general principles are 

trumped in their cases because their transfer to Iraqi 

custody is likely to result in torture. This allegation was

raised in Munaf’s petition for habeas, App. 39, ¶46, but 

not in Omar’s. Such allegations are of course a matter of

serious concern, but in the present context that concern is

to be addressed by the political branches, not the judiciary. See M. Bassiouni, International Extradition: United 

States Law and Practice 921 (2007) (“Habeas corpus has 

been held not to be a valid means of inquiry into the 

treatment the relator is anticipated to receive in the requesting state”).

This conclusion is reflected in the cases already cited.

Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized that it is for the political branches, not the judiciary,

to assess practices in foreign countries and to determine

national policy in light of those assessments. Thus, the 

Court in Neely concluded that an American citizen who 

“commits a crime in a foreign country” “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,” but went on to explain that this was true 

“unless a different mode be provided for by treaty stipulation between that country and the United States.” 180 
 

24 MUNAF v. GEREN 

Opinion of the Court 

U. S., at 123. Diplomacy was the means of addressing the 

petitioner’s concerns.

By the same token, while the Court in Wilson stated the 

general principle that a “sovereign nation has exclusive

jurisdiction to punish offenses against its laws committed

within its borders,” it recognized that this rule could be 

altered by diplomatic agreement in light of particular 

concerns—as it was in that case—and by a decision of the

Executive to waive jurisdiction granted under that agreement—as it was in that case. 354 U. S., at 529. See also 

Kinsella, 351 U. S., at 479 (alteration of jurisdictional rule

through “carefully drawn agreements”). This recognition

that it is the political branches that bear responsibility for 

creating exceptions to the general rule is nothing new; as

Chief Justice Marshall explained in the Schooner Exchange, “exemptions from territorial jurisdiction . . . must 

be derived from the consent of the sovereign of the territory” and are “rather questions of policy than of law, that 

they are for diplomatic, rather than legal discussion.” 7 

Cranch, at 143, 146. The present concerns are of the same 

nature as the loss of constitutional rights alleged in Wilson and Neely, and are governed by the same principles.5 

The Executive Branch may, of course, decline to surrender a detainee for many reasons, including humanitarian 

ones. Petitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme

case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him 

—————— 

5The United States has in fact entered into treaties that provide 

procedural protections to American citizens tried in other nations. See, 

e.g., North Atlantic Treaty: Status of Forces, June 19, 1951, 4 U. S. T. 

1802, T. I. A. S. No. 2846, Art. VII, ¶9 (guaranteeing arrested members 

of the Armed Forces and their civilian dependents, inter alia, an 

attorney, an interpreter, and a prompt and speedy trial, as well as the

right to confront witnesses, obtain favorable witnesses, and communicate with a representative of the United States). 
 

Cite as: 553 U. S. ____ (2008) 25 

Opinion of the Court 

anyway. Indeed, the Solicitor General states that it is the 

policy of the United States not to transfer an individual in 

circumstances where torture is likely to result. Brief for 

Federal Parties 47; Reply Brief for Federal Parties 23. In 

these cases the United States explains that, although it

remains concerned about torture among some sectors of 

the Iraqi Government, the State Department has determined that the Justice Ministry—the department that

would have authority over Munaf and Omar—as well as

its prison and detention facilities have “‘generally met 

internationally accepted standards for basic prisoner 

needs.’” Ibid. The Solicitor General explains that such

determinations are based on “the Executive’s assessment 

of the foreign country’s legal system and . . . the Executive[’s] . . . ability to obtain foreign assurances it considers

reliable.” Brief for Federal Parties 47. 

The Judiciary is not suited to second-guess such determinations—determinations that would require federal

courts to pass judgment on foreign justice systems and 

undermine the Government’s ability to speak with one 

voice in this area. See The Federalist No. 42, p. 279 (J.

Cooke ed. 1961) (J. Madison) (“If we are to be one nation in

any respect, it clearly ought to be in respect to other nations”). In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as 

whether there is a serious prospect of torture at the hands

of an ally, and what to do about it if there is. As Judge 

Brown noted, “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.” 479 F. 3d, at 20, n. 6 (dissenting 

opinion).

Petitioners briefly argue that their claims of potential 

torture may not be readily dismissed on the basis of these 

principles because the FARR Act prohibits transfer when

torture may result. Brief for Habeas Petitioners 51–52. 
 

 

26 MUNAF v. GEREN 

Opinion of the Court 

Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the 

certiorari filings before this Court. Even in their merits 

brief in this Court, the habeas petitioners hardly discuss

the issue. Id., at 17, 51–52, 57–58. The Government 

treats the issue in kind. Reply Brief for Federal Parties 

24–26. Under such circumstances we will not consider the 

question.6 

2 

Finally, the habeas petitioners raise the additional 

argument that the United States may not transfer a detainee to Iraqi custody, not because it would be unconsti­

—————— 

6We hold that these habeas petitions raise no claim for relief under 

the FARR Act and express no opinion on whether Munaf and Omar

may be permitted to amend their respective pleadings to raise such a

claim on remand. Even if considered on the merits, several issues 

under the FARR Act claim would have to be addressed. First, the Act 

speaks to situations where a detainee is being “returned” to “a country.”

FARR Act §2242(a), 112 Stat. 2681–822 (“It shall be the policy of the

United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial 

grounds for believing the person would be in danger of being subjected 

to torture, regardless of whether the person is physically present in the

United States”); see also Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, 1465 U. N. T. S. 85,

Art. 3, S. Treaty Doc. No. 20, 100th Cong., 2d Sess., p. 6 (1988) (“No

State Party shall expel, return (‘refouler’) or extradite a person to 

another State where there are substantial grounds for believing that he 

would be in danger of being subjected to torture” (emphasis added)). It 

is not settled that the Act addresses the transfer of an individual 

located in Iraq to the Government of Iraq; arguably such an individual

is not being “returned” to “a country”—he is already there. 

Second, claims under the FARR Act may be limited to certain immigration proceedings. See §2242(d), 112 Stat. 2681–822 (“[N]othing in

this section shall be construed as providing any court jurisdiction to

consider or review claims raised under the Convention or this section, 

or any other determination made with respect to the application of the

policy set forth in [this section], except as part of the review of a final 

order of removal pursuant to [8 U. S. C. §1252 (2000 ed. and Supp. V]”). 
 

Cite as: 553 U. S. ____ (2008) 27 

Opinion of the Court 

tutional to do so, but because the “[G]overnment may not

transfer a citizen without legal authority.” Brief for Habeas Petitioners 54. The United States, they claim, bears

the burden of “identify[ing] a treaty or statute that permits it to transfer the[m] to Iraqi custody.” Id., at 49. 

The habeas petitioners rely prominently on Valentine v. 

United States ex rel. Neidecker, 299 U. S. 5 (1936), where 

we ruled that the Executive may not extradite a person 

held within the United States unless “legal authority” to

do so “is given by act of Congress or by the terms of a 

treaty,” id., at 9. But Valentine is readily distinguishable. 

It involved the extradition of an individual from the 

United States; this is not an extradition case, but one 

involving the transfer to a sovereign’s authority of an

individual captured and already detained in that sovereign’s territory. In the extradition context, when a “fugitive criminal” is found within the United States, “‘there is 

no authority vested in any department of the government

to seize [him] and surrender him to a foreign power,’” in 

the absence of a pertinent constitutional or legislative

provision. Ibid. But Omar and Munaf voluntarily traveled to Iraq and are being held there. They are therefore

subject to the territorial jurisdiction of that sovereign, not

of the United States. Moreover, as we have explained, the 

petitioners are being held by the United States, acting as

part of MNF–I, at the request of and on behalf of the Iraqi 

Government. It would be more than odd if the Government had no authority to transfer them to the very sovereign on whose behalf, and within whose territory, they are

being detained.

The habeas petitioners further contend that this Court’s

decision in Wilson supports their argument that the Executive lacks the discretion to transfer a citizen absent a 

treaty or statute. Brief for Habeas Petitioners 54–55. 

Quite the opposite. Wilson forecloses it. The only “authority” at issue in Wilson—a Status of Forces Agreement— 
 

 

28 MUNAF v. GEREN 

Opinion of the Court 

seemed to give the habeas petitioner in that case a right to

be tried by an American military tribunal, not a Japanese 

court. 354 U. S., at 529. Nevertheless, in light of the 

background principle that Japan had a sovereign interest 

in prosecuting crimes committed within its borders, this

Court found no “constitutional or statutory” impediment to

the United States’s waiver of its jurisdiction under the 

agreement. Id., at 530. 

* * * 

Munaf and Omar are alleged to have committed hostile 

and warlike acts within the sovereign territory of Iraq

during ongoing hostilities there. Pending their criminal

prosecution for those offenses, Munaf and Omar are being 

held in Iraq by American forces operating pursuant to a

U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right 

to prosecute them for alleged violations of its law. Yet 

they went to federal court seeking an order that would

allow them to defeat precisely that sovereign authority. 

Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the

sovereign with authority to prosecute them. 

For all the reasons given above, petitioners state no

claim in their habeas petitions for which relief can be 

granted, and those petitions should have been promptly

dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases 

are remanded for further proceedings consistent with this

opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

SOUTER, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 06–1666 and 07–394 

MOHAMMAD MUNAF, ET AL., PETITIONERS 

06–1666 v. 

PETE GEREN, SECRETARY OF THE 

ARMY, ET AL. 

PETE GEREN, SECRETARY OF THE ARMY, ET AL., 

PETITIONERS 

07–394 v. 

SANDRA K. OMAR AND AHMED S. OMAR, AS 

NEXT FRIENDS OF SHAWQI AHMAD OMAR 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 12, 2008] 

JUSTICE SOUTER, with whom JUSTICE GINSBURG and 

JUSTICE BREYER join, concurring. 

The Court holds that “[u]nder circumstances such as

those presented here, . . . habeas corpus provides petitioners with no relief.” Ante, at 2. The Court’s opinion makes

clear that those circumstances include the following: (1)

Omar and Munaf “voluntarily traveled to Iraq.” Ante, at 

16. They are being held (2) in the “territory” of (3) an

“all[y]” of the United States, ante, at 22, (4) by our troops, 

see ante, at 8, (5) “during ongoing hostilities” that (6) 

“involv[e] our troops,” ante, at 22. (7) The government of a 

foreign sovereign, Iraq, has decided to prosecute them “for 

crimes committed on its soil.” Ante, at 17. And (8) “the 

State Department has determined that . . . the department

that would have authority over Munaf and Omar . . . as 

well as its prison and detention facilities have generally 
 

 

2 MUNAF v. GEREN 

SOUTER, J., concurring 

met internationally accepted standards for basic prisoner 

needs.” Ante, at 25 (internal quotation marks omitted).

Because I consider these circumstances essential to the 

Court’s holding, I join its opinion.

The Court accordingly reserves judgment on an “extreme case in which the Executive has determined that a 

detainee [in United States custody] is likely to be tortured

but decides to transfer him anyway.” Ante, at 24–25. I 

would add that nothing in today’s opinion should be read 

as foreclosing relief for a citizen of the United States who

resists transfer, say, from the American military to a 

foreign government for prosecution in a case of that sort, 

and I would extend the caveat to a case in which the probability of torture is well documented, even if the Executive 

fails to acknowledge it. Although the Court rightly points

out that any likelihood of extreme mistreatment at the 

receiving government’s hands is a proper matter for the 

political branches to consider, see ante, at 23–24, if the 

political branches did favor transfer it would be in order to

ask whether substantive due process bars the Government 

from consigning its own people to torture. And although

the Court points out that habeas is aimed at securing 

release, not protective detention, see ante, at 16, habeas 

would not be the only avenue open to an objecting prisoner; “where federally protected rights [are threatened], it

has been the rule from the beginning that courts will be

alert to adjust their remedies so as to grant the necessary

relief,” Bell v. Hood, 327 U. S. 678, 684 (1946).