United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2010 Decided June 21, 2011 

No. 09-5410 

SANDRA K. OMAR, ET AL., 

APPELLANTS

v. 

JOHN M. MCHUGH, SECRETARY OF THE UNITED STATES 

ARMY, ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:05-cv-02374) 

Joseph Margulies argued the cause for appellants. With 

him on the briefs were Jonathan Hafetz, Aziz Z. Huq, Emily 

Berman, and Eric M. Freedman. 

Douglas N. Letter, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Ronald C. Machen Jr., U.S. Attorney, and Jonathan H. Levy, 

Attorney. 

Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit 

Judges. 
2 

 Opinion for the Court filed by Circuit Judge

KAVANAUGH, with whom Circuit Judge GINSBURG joins. 

 Opinion concurring in the judgment filed by Circuit 

Judge GRIFFITH. 

 KAVANAUGH, Circuit Judge: Shawqi Omar is a dual 

citizen of Jordan and the United States. Since 2004, the U.S. 

military has detained Omar in Iraq based on evidence that 

Omar participated in al Qaeda’s terrorist activities there. The 

United States apparently intends to transfer Omar to the 

custody of Iraq’s government. But since 2005, Omar has 

pursued a habeas corpus petition in the U.S. court system 

seeking to block his transfer. Even though U.S. forces are 

detaining Omar outside U.S. territory, we have jurisdiction to 

consider his habeas petition because he is a U.S. citizen. See 

Munaf v. Geren, 553 U.S. 674, 685-88 (2008); cf. 

Boumediene v. Bush, 553 U.S. 723, 766 (2008); Johnson v. 

Eisentrager, 339 U.S. 763, 777 (1950); Al Maqaleh v. Gates, 

605 F.3d 84, 94 (D.C. Cir. 2010). 

 

 Omar argues that he cannot be transferred to the custody 

of Iraqi officials because, he claims, he is likely to be tortured 

after his transfer. The U.S. Executive Branch responds that it 

does not transfer persons to countries where they are likely to 

be tortured. And the Executive Branch maintains that Omar 

is not likely to be tortured if transferred to Iraqi custody. 

 In his initial habeas petition, Omar argued that he had a 

habeas corpus and due process right not to be transferred if, as 

he alleged, he was likely to be tortured in the custody of the 

receiving country. Omar contended that he had a 

corresponding right to judicial review of conditions in the 

receiving country before he could be transferred. The 

Supreme Court unanimously rejected that argument in 2008, 
3 

concluding that Omar did not have a habeas corpus or due 

process right to judicial second-guessing of the Executive’s 

determination that he was not likely to be tortured in Iraqi 

custody. See Munaf, 553 U.S. at 692-703. 

 In his amended habeas petition, Omar now asserts that 

the Foreign Affairs Reform and Restructuring Act of 1998 

(which has been supplemented by the REAL ID Act of 2005) 

gives him a right to judicial review of conditions in the 

receiving country before he may be transferred. Omar’s 

statutory argument is no more persuasive than the 

constitutional argument already rejected by the Supreme 

Court. As this Court has previously held, the FARR Act and 

the REAL ID Act do not give military transferees such as 

Omar a right to judicial review of their likely treatment in the 

receiving country. See Kiyemba v. Obama (“Kiyemba II”), 

561 F.3d 509, 514-15 (D.C. Cir. 2009). 

 Omar also has refashioned his previously rejected 

constitutional argument. He contends that he is entitled under 

the Constitution’s habeas corpus guarantee – either by itself 

or in conjunction with the Due Process Clause or the FARR 

Act – to judicial review of conditions in the receiving country. 

We disagree. As the Supreme Court already ruled when 

considering Omar’s case in Munaf, the Constitution’s 

guarantee of habeas corpus does not encompass such a right. 

 We therefore affirm the District Court’s denial of Omar’s 

petition for a writ of habeas corpus. In so doing, we 

recognize that the policy arguments supporting Omar’s 

position are not insubstantial. Congress remains free to 

provide military transferees such as Omar with a right to 

judicial review of conditions in the receiving country before 

they are transferred. But Congress has not done so. 
4 

I 

 Shawqi Omar is a citizen of both Jordan and the United 

States. In October 2004, the U.S. military captured him in 

Baghdad, Iraq. The United States suspected that Omar had 

been working with the leadership of al Qaeda in Iraq by 

recruiting foreign fighters, coordinating with other terrorist 

groups, and planning and executing kidnappings. In a 

separate proceeding, the Government of Iraq convicted Omar 

of immigration violations, and he was sentenced to 15 years 

in prison. 

 The U.S. military has detained Omar since 2004 and is 

currently holding him at Camp Cropper, Iraq. The United 

States apparently intends to transfer Omar to Iraqi custody. In 

2005, Omar’s wife, Sandra Omar, and his son, Ahmed Omar, 

filed a next-friend petition for a writ of habeas corpus in the 

U.S. District Court for the District of Columbia. Omar 

sought, among other things, an injunction preventing his 

transfer to Iraqi custody. 

 Omar’s case reached the Supreme Court in 2008. See 

Munaf v. Geren, 553 U.S. 674 (2008).1

 Omar argued that he 

 1

 This case has followed a meandering course. In 2006, the 

District Court issued an injunction preventing the U.S. Government 

from transferring Omar to Iraq. Omar v. Harvey, 416 F. Supp. 2d 

19 (D.D.C. 2006). On appeal of that ruling, the initial question 

presented to this Court was whether the federal courts had 

jurisdiction given that Omar was in the custody of a multi-national 

force, not an entirely American force. Omar v. Harvey, 479 F.3d 1, 

5-6 (D.C. Cir. 2007). The Supreme Court had analyzed a similar 

issue in Hirota v. MacArthur, 338 U.S. 197 (1948), and found no 

jurisdiction to consider habeas claims raised by detainees in the 

custody of a multi-national force occupying Japan after World War 

II. In Omar, a panel of this Court set forth a four-factored test to 
5 

was likely to be tortured if transferred to Iraqi authorities, that 

he had a right under “the substantive component of the Due 

Process Clause” against “transfers to likely torture,” and that 

the courts had the authority and duty to enforce that right by 

inquiring into his likely treatment in the receiving country, 

Iraq. Brief for Habeas Petitioners at 51, Munaf, 553 U.S. 674 

(Nos. 06-1666, 07-394). The Court unanimously rejected 

Omar’s argument, pointing to the Executive’s assertion that 

“it is the policy of the United States not to transfer an 

individual in circumstances where torture is likely to result” 

and to the Executive’s determination that Omar was unlikely 

to face torture while in Iraqi custody. Munaf, 553 U.S. at 702. 

The Court stated that “[t]he Judiciary is not suited to secondguess such determinations.” Id. In so concluding, the Court 

did not distinguish between due process rights and habeas 

corpus rights. The Court followed longstanding extradition 

 

flesh out the Hirota jurisdictional issue and, applying that test, 

found jurisdiction to hear Omar’s claims. See Omar, 479 F.3d at 6-

9. In a later case involving a different American citizen, Munaf, 

held by a multi-national force in Iraq under different circumstances, 

a panel of this Court applied the Omar test to Munaf’s habeas 

petition. Applying that test, the Munaf panel found no jurisdiction 

over Munaf’s petition; in doing so, however, the panel expressed 

doubts about the logic and continued vitality of the Supreme 

Court’s Hirota decision, at least with respect to detention of 

American citizens. Munaf v. Geren ̧ 482 F.3d 582 (D.C. Cir. 2007). 

On review of the Omar and Munaf decisions together, the Supreme 

Court significantly cabined the Hirota precedent, essentially 

adopting Justice Douglas’s concurrence from that case, and 

simplified the jurisdictional question when, as here, an American 

citizen is detained by U.S. forces operating as part of a multinational force. Munaf, 553 U.S. at 685-88. With Hirota no longer 

an obstacle and because Omar and Munaf are U.S. citizens, the 

Supreme Court found jurisdiction over Omar’s and Munaf’s 

petitions but rejected their constitutional claims on the merits. Id.

at 689-705.
6 

principles and precedents, noting that “[h]abeas 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.” 

Id. at 700 (quoting M. BASSIOUNI, INTERNATIONAL 

EXTRADITION: UNITED STATES LAW AND PRACTICE 921 

(2007)) (emphasis omitted). The Court held that Omar’s 

petition did not “state grounds upon which habeas relief may 

be granted.” Munaf, 553 U.S. at 692. Omar’s fear of torture 

in Iraqi custody did not trump the general principle that, 

absent congressional direction otherwise, courts may not 

inquire into the treatment a transferee such as Omar might 

receive in the custody of another sovereign. See id. at 700-03. 

 In his submission to the Supreme Court, Omar also 

argued that he had a right under the Foreign Affairs Reform 

and Restructuring Act of 1998 to judicial review of conditions 

in the receiving country. See 8 U.S.C. § 1231 note. The 

Court declined to reach Omar’s FARR Act claim because he 

had not advanced it in his initial petition for habeas corpus. 

The Court, in any event, expressed doubt that Omar would 

have a claim under the Act. See Munaf, 553 U.S. at 703 & 

n.6. 

 Omar then filed an amended petition for habeas corpus in 

the District Court. Omar’s amended petition raised a stew of 

FARR Act, habeas corpus, and due process claims. The 

District Court granted the Government’s motion to dismiss. 

We review that decision de novo. 

II 

 Omar argues that the Foreign Affairs Reform and 

Restructuring Act of 1998 grants him a right to judicial 

review of conditions in the receiving country – here, Iraq – 

before he is transferred. But this Court has already held that 
7 

the FARR Act, as supplemented by the REAL ID Act of 

2005, does not give military transferees such as Omar that 

right. See Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509, 

514-15 (D.C. Cir. 2009). In light of that controlling circuit 

precedent, Omar’s argument is unavailing. 

 The Foreign Affairs Reform and Restructuring Act of 

1998 implements Article 3 of the Convention Against 

Torture. The Convention Against Torture was signed in 1988 

by a representative of the President and ratified in 1990 by the 

U.S. Senate. See United Nations Convention Against Torture 

and Other Cruel, Inhuman or Degrading Treatment or 

Punishment, 108 Stat. 382, 1465 U.N.T.S 85; 136 CONG. REC.

S17,491-92 (daily ed. Oct. 27, 1990). Article 3 of the 

Convention Against Torture provides: “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.” This 

multilateral treaty is non-self-executing and thus does not 

itself create any rights enforceable in U.S. courts. See 

Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008). 

The FARR Act provides, in relevant part: 

(a) POLICY.—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. 

. . . . 

(d) REVIEW AND CONSTRUCTION.—Notwithstanding any 

other provision of law . . . no court shall have jurisdiction 

to review the regulations adopted to implement this 
8 

section, and nothing in this section shall be construed as 

providing any court jurisdiction to consider or review 

claims raised under the Convention [Against Torture] or 

this section, or any other determination made with respect 

to the application of the policy set forth in subsection (a), 

except as part of the review of a final order of removal 

pursuant to section 242 of the Immigration and 

Nationality Act (8 U.S.C. 1252). 

Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 822 (1998) 

(codified at 8 U.S.C. § 1231 note) (emphasis added). 

 By its terms, the FARR Act provides a right to judicial 

review of conditions in the receiving country only in the 

immigration context, for aliens seeking review of a final order 

of removal. The FARR Act does not give extradition or 

military transferees – the other two categories in which 

transfer issues typically arise – a right to judicial review of 

conditions in the receiving country. Omar is a military 

transferee, not an alien seeking review of a final order of 

removal under the immigration laws. Therefore, the FARR 

Act does not afford him any right to judicial review of 

conditions in the receiving country. See Mironescu v. 

Costner, 480 F.3d 664, 674-76 (4th Cir. 2007) (FARR Act 

allows claims only for immigration detainees facing removal); 

see also Munaf v. Geren, 553 U.S. 674, 703 n.6 (2008) 

(“claims under the FARR Act may be limited to certain 

immigration proceedings”). 

 It is true that § 2242(a) of the FARR Act states a broad 

“policy” that the Executive Branch presumably has a 

responsibility to follow with respect to all transfers, at least 

absent any claim of unconstitutionality under Article II of the 

Constitution. The Act also plainly says, however, that only 

immigration transferees may obtain judicial review of 
9 

conditions in the receiving country before they are 

transferred. 

 Even if the FARR Act had extended a judicial review 

right to extradition or military transferees such as Omar, a 

subsequent statute – the REAL ID Act of 2005 – made clear 

that those kinds of transferees have no such right. The REAL 

ID Act states that only immigration transferees have a right to 

judicial review of conditions in the receiving country, during 

a court’s review of a final order of removal. That Act 

specifies: 

Notwithstanding any other provision of law (statutory or 

nonstatutory), including section 2241 of title 28, United 

States Code, or any other habeas corpus provision, and 

sections 1361 and 1651 of such title, a petition for review 

filed with an appropriate court of appeals in accordance 

with this section [§ 242 of the Immigration and 

Nationality Act] shall be the sole and exclusive means for 

judicial review of any cause or claim under the United 

Nations Convention Against Torture and Other Forms of 

Cruel, Inhuman, or Degrading Treatment or Punishment 

. . . .

Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005) 

(codified at 8 U.S.C. § 1252(a)(4)). 

 Omar is not subject to a removal order and has not filed – 

and, as a military transferee, is not eligible to file – a petition 

for review under § 242 of the Immigration and Nationality 

Act. The REAL ID Act thus confirms that Omar possesses no 

statutory right to judicial review of conditions in the receiving 
10 

country. See Kiyemba II, 561 F.3d at 514-15 (citing REAL 

ID Act).2

III 

 According to Omar, the Constitution’s guarantees of 

habeas corpus and due process grant him a right to judicial 

review of conditions in Iraq before he is transferred. We 

disagree with Omar’s constitutional argument. 

 The Supreme Court ruled in Munaf – litigation in which 

Omar himself was a party – that the Constitution does not 

grant extradition or military transferees such as Omar a 

habeas corpus or due process right to judicial review of 

conditions in the receiving country before they are 

transferred. Munaf v. Geren, 553 U.S. 674, 700-03 (2008).3

 

 2

 Omar briefly contends that his claim is under the FARR Act 

and thus is not a “cause or claim” under the Convention Against 

Torture that is thereby barred by the REAL ID Act. But it is 

undisputed that the FARR Act implements the Convention Against 

Torture. Therefore, as this Court has already held, a claim under 

this section of the FARR Act is a claim under the Convention 

Against Torture and is barred by the REAL ID Act. See Kiyemba 

II, 561 F.3d at 514-15. 

 Consistent with our decision in Kiyemba II, several other 

courts of appeals have similarly concluded that a claim about 

conditions in the receiving country may be raised only during 

review of a final order of removal under the Immigration and 

Nationality Act. See, e.g., Lovan v. Holder, 574 F.3d 990, 998 (8th 

Cir. 2009); Khouzam v. Attorney Gen. of the U.S., 549 F.3d 235, 

245 (3d Cir. 2008); Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 

2005). 

3 Munaf addressed Omar’s argument that the Constitution’s 

habeas corpus guarantee gave him a right to judicial review of 

conditions in the receiving country. It is thus quite possible that 

Omar’s current habeas corpus arguments, although refashioned, are 
11 

In so ruling, the Court recognized that there are three 

principal settings in which the issue arises: (i) extradition, (ii) 

transfer of military detainees, and (iii) removal of 

immigration detainees. 

 Those facing extradition traditionally have not been able 

to maintain habeas claims to block transfer based on 

conditions in the receiving country. Rather, applying what 

has been known as the rule of non-inquiry, courts historically 

have refused to inquire into conditions an extradited 

individual might face in the receiving country. In Munaf, the 

Supreme Court reaffirmed this precise point, stating “we have 

recognized that it is for the political branches, not the 

Judiciary, to assess practices in foreign countries.” Munaf,

553 U.S. at 700-01; see also, e.g., Neely v. Henkel, 180 U.S. 

109, 122-23 (1901); Noriega v. Pastrana, 564 F.3d 1290, 

1294-96 (11th Cir. 2009); Hoxha v. Levi, 465 F.3d 554, 563 

(3d Cir. 2006); United States v. Kin-Hong, 110 F.3d 103, 110-

11 & nn.11-12 (1st Cir. 1997); Ahmad v. Wigen, 910 F.2d 

1063, 1066-67 (2d Cir. 1990); Jacques Semmelman, Federal 

Courts, the Constitution, and the Rule of Non-Inquiry in 

International Extradition Proceedings, 76 CORNELL L. REV.

1198 (1991). 

 Similarly, military transferees traditionally have not been 

able to raise habeas claims to prevent transfer based on 

conditions in the receiving country. Since the Founding, the 

United States has routinely transferred wartime detainees at 

the end of hostilities or as part of an exchange, without 

judicial review of conditions the transferees would face in the 

other nation. In Boumediene v. Bush, the Supreme Court 

 

barred as res judicata. We need not decide that question because 

res judicata is not jurisdictional and Omar’s habeas arguments are 

unavailing in any event. 
12 

explained that negotiated exchange of prisoners was “a 

wartime practice well known to the Framers,” and “[j]udicial 

intervention might have complicated” those negotiations. 553 

U.S. 723, 747-48 (2008); see also Kiyemba v. Obama 

(“Kiyemba II”), 561 F.3d 509, 519-20 & n.6 (D.C. Cir. 2009) 

(Kavanaugh, J., concurring) (collecting sources). 

 Therefore, Omar is in a class of would-be transferees 

who historically have not been able to bring habeas claims to 

obtain judicial review of conditions in the receiving country 

before being transferred. Omar is a military detainee captured 

during war and now facing transfer to the custody of another 

nation. In addition, because Omar is facing transfer to the 

custody of another sovereign that has convicted him of a 

crime, his situation is analogous to that of an extradition 

transferee – a point Omar himself acknowledges. See Omar 

Br. at 39; see also Munaf, 553 U.S. at 700-02 (relying on 

extradition cases to analyze Omar’s previous claim). But 

neither military detainees nor those facing extradition 

historically have possessed a right to judicial review of 

conditions in the receiving country before they were 

transferred. 

 That history matters: In habeas cases, we seek guidance 

from history “addressing the specific question before us.” 

Boumediene, 553 U.S. at 746. Here, the history is clear on 

the specific question before us. Historically, a would-be 

transferee such as Omar has possessed no right to judicial 

review of conditions the transferee might face in another 

country. As the Court said in Munaf: “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.” 

Munaf, 553 U.S. at 700 (quoting M. BASSIOUNI, 

INTERNATIONAL EXTRADITION: UNITED STATES LAW AND 

PRACTICE 921 (2007)) (emphasis omitted). Instead, as Munaf
13 

explained, history demonstrates 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.” Munaf, 553 U.S. at 700-01 (citing Neely v. 

Henkel, 180 U.S. 109 (1901), and Wilson v. Girard, 354 U.S. 

524 (1957)). 

 In light of that history, the Supreme Court unanimously 

ruled in Munaf that transferees such as Omar (indeed, Omar 

himself) do not possess a habeas or due process right to 

judicial review of conditions in the receiving country.4

 

 Here, Omar tries to dodge Munaf by suggesting that the 

Constitution’s habeas corpus guarantee alone gives him a 

right to judicial review of conditions in the receiving country. 

That makes no sense. As Omar himself stated in his brief in 

Munaf: “The Due Process and Suspension Clauses converge 

in habeas.” Brief for Habeas Petitioners at 28, Munaf, 553 

U.S. 674 (Nos. 06-1666, 07-394). Munaf held that habeas and 

due process together do not give transferees such as Omar a 

right to judicial review of conditions in the receiving country. 

It would be absurd, therefore, to think that habeas alone gives 

Omar such a right.5

 4

 Since Munaf, this Court has several times applied that 

decision, and the Supreme Court has subsequently denied review in 

each of those cases. See Kiyemba II, 561 F.3d 509, cert. denied, 

130 S. Ct. 1880 (2010); Khadr v. Obama, No. 08-5233 (D.C. Cir. 

Sept. 3, 2010), cert. denied, No. 10-751 (U.S. May 23, 2011); 

Mohammed v. Obama, No. 10-5218 (D.C. Cir. July 8, 2010), stay 

denied, No. 10-746 (U.S. July 16, 2010), dismissed as moot (U.S. 

Apr. 12, 2011). 

5 Munaf considered a due process claim raised in a habeas 

petition, and it analyzed the habeas and due process protections 

without distinguishing the two. The Court in Munaf did not need to 

distinguish between the two constitutional provisions because the 
14 

 In a related effort to avoid Munaf, Omar contends that he 

advanced only a procedural due process argument in that case, 

as opposed to the substantive due process argument he asserts 

now. But his brief in Munaf stated that “Omar and Munaf 

have rights under both the substantive component of the Due 

Process Clause and the FARR Act against transfers to likely 

torture.” Brief for Habeas Petitioners at 51, Munaf, 553 U.S. 

674 (Nos. 06-1666, 07-394). When the Court addressed the 

merits of Omar’s claim, it rejected his substantive and 

procedural due process claims. See Munaf, 553 U.S. at 692-

703. In light of the Supreme Court’s decision, we reject 

Omar’s substantive due process claim here. 

 In short, the inquiry that Omar asks this Court to 

undertake in this habeas case – reviewing the conditions 

Omar might face in Iraqi custody – is the precise inquiry that 

the Supreme Court in Munaf already rejected. As a lower 

 

protections of due process and habeas corpus are inextricably 

intertwined and overlapping in the context of a petition for habeas 

corpus filed by a military transferee such as Omar. See generally 

Hamdi v. Rumsfeld, 542 U.S. 507, 525-29 (2004) (plurality 

opinion); id at 538 (“a court that receives a petition for a writ of 

habeas corpus from an alleged enemy combatant must itself ensure 

that the minimum requirements of due process are achieved”); id. at 

555-58 (Scalia, J., dissenting) (“The two ideas central to 

Blackstone’s understanding – due process as the right secured, and 

habeas corpus as the instrument by which due process could be 

insisted upon by a citizen illegally imprisoned – found expression 

in the Constitution’s Due Process and Suspension Clauses.”); Fay 

v. Noia, 372 U.S. 391, 402 (1963) (“Vindication of due process is 

precisely [the] historic office” of habeas corpus); Joshua Alexander 

Geltzer, Of Suspension, Due Process, and Guantanamo: The Reach 

of the Fifth Amendment after Boumediene and the Relationship 

Between Habeas Corpus and Due Process, U. PA. J. CONST. L.

(forthcoming). 
15 

court, even apart from possible res judicata problems with 

Omar’s habeas corpus submission, we have no authority to 

toss Munaf aside in this manner. “Vertical stare decisis – both 

in letter and in spirit – is a critical aspect of our hierarchical 

Judiciary headed by ‘one supreme Court.’” Winslow v. 

FERC, 587 F.3d 1133, 1135 (D.C. Cir. 2009) (quoting U.S.

CONST. art. III, § 1).6

IV 

 The Supreme Court has established that there is no 

freestanding constitutional right for extradition or military 

transferees to obtain judicial review of conditions in the 

receiving country before being transferred. And this Court 

has established that there is no statutory right for extradition 

or military transferees to obtain such review. No doubt 

recognizing those obstacles to his submission, Omar strings 

together a series of quasi-constitutional arguments: He 

suggests that the Constitution’s habeas corpus guarantee 

somehow combines with the FARR Act to give him a right to 

judicial review of conditions in the receiving country, even 

though neither the Constitution nor the FARR Act by itself 

does so. We disagree with those arguments; indeed, we have 

some trouble understanding them. 

First, Omar at times appears to suggest that Congress 

cannot give immigration transferees a right to judicial review 

of conditions in the receiving country unless Congress also 

extends the right to extradition and military transferees. 

 6

 In Munaf, the Supreme Court noted that it was not deciding 

“a more extreme case in which the Executive has determined that a 

detainee is likely to be tortured but decides to transfer him 

anyway.” 553 U.S. at 702. We too have no need to decide such a 

question given the Government’s stated policy with respect to 

Omar. 
16 

Whatever the merits of that all-or-nothing position as a policy 

matter, it strikes us as frivolous as a constitutional matter. We 

see no constitutional reason Congress cannot incrementally or 

selectively create new rights for transferees beyond the rights 

guaranteed by the Constitution, at least so long as no suspect 

classification is employed and the scheme has a rational basis 

that satisfies equal protection principles. 

Second, Omar seems to say that the FARR Act violates 

the Constitution by declaring a statutory “policy” against 

transfer to torture for all transferees but then affording only 

immigration transferees the right to judicial review of 

conditions in the receiving country. We again fail to see how 

that poses a serious constitutional issue. As a practical and a 

legal matter, that scenario is no different from Congress 

creating a right only for immigration transferees to obtain 

judicial review of conditions in the receiving country. To 

reiterate, Congress need not proceed in an all-or-nothing 

manner when expanding judicial review for transferees. 

 Subject to the constraints of Article II, Congress remains 

free of course to impose broader responsibilities on the 

Executive, beyond those required by the Constitution, while 

declining to provide judicial review of the Executive’s 

compliance with those additional statutory responsibilities. 

See, e.g., Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 

66-67 (2004) (statute does not provide for judicial review of 

agency’s “compliance with the broad statutory mandate”); 

Webster v. Doe, 486 U.S. 592, 599-601 (1988) (statute 

precludes judicial review of statutory claim against CIA); 

Noriega v. Pastrana, 564 F.3d 1290, 1294-96 (11th Cir. 2009) 

(statute bars judicial review of habeas claim that State 

Department did not comply with Geneva Convention); see 
17 

generally 5 U.S.C. § 701(a)(1) (no judicial review when 

statute precludes judicial review of statutory claims).7

 

 That is precisely what Congress did in § 2242(a) of the 

FARR Act and the REAL ID Act. Because Omar has no 

constitutional right at stake here (as Munaf made clear), 

Congress has no obligation to provide judicial review for the 

extra-constitutional responsibilities the FARR Act imposes on 

the Executive Branch. Omar suggests that Congress cannot 

express a policy for the Executive Branch to follow without 

also creating a right to judicial enforcement of that policy. No 

case has ever said that. Under Omar’s approach, Congress 

may not express a general policy regarding transfers and 

make that policy judicially enforceable only for immigration 

transferees. Yet Congress could constitutionally achieve the 

same result simply by declaring that the transfer policy itself 

applies only to immigration transferees. The Constitution 

does not turn on such arcane and empty semantics.8

 7

 Congress’s use of the word “policy” in § 2242(a) of the 

FARR Act – rather than a word such as “right” – reinforces the 

conclusion that Congress did not intend to create an “entitlement” 

for all transferees that in turn might trigger constitutional habeas or 

procedural due process protections. Cf. Town of Castle Rock v. 

Gonzales, 545 U.S. 748 (2005); Sandin v. Conner, 515 U.S. 472 

(1995). 

8

 Omar also appears to suggest that there is a constitutional 

difference between Congress’s (i) refusing to grant a statutory right 

to judicial review of conditions that extradition and military 

transferees may face in the receiving country and (ii) refusing to 

grant “jurisdiction” for courts to review conditions that extradition 

and military transferees may face in the receiving country. We fail 

to grasp the significance of such a distinction for purposes of the 

constitutional guarantee of habeas corpus. As a practical matter, 

the two situations are exactly the same for the transferees. And as a 

legal matter, the only impact of Congress’s proceeding via the 

“jurisdiction” label is to make clear that FARR Act claims are not 
18 

Third, Omar advances a kind of one-way ratchet theory. 

He suggests that Congress, through the REAL ID Act, could 

not take away any statutory right it created in the FARR Act 

of 1998. As an initial matter, as we explained in our statutory 

analysis above, the REAL ID Act merely confirmed what the 

FARR Act said – that only immigration transferees may 

obtain judicial review of conditions in the receiving country. 

But even if the REAL ID Act took away a statutory right that 

the FARR Act had previously granted, that scenario poses no 

constitutional problem. Congress does not amend the 

Constitution, or alter the scope of the constitutional writ of 

habeas corpus, whenever it amends a statutory right that 

might be available in a habeas case. Congress thus remains 

generally free to undo a statute that applies in habeas cases, 

just as it can undo other statutory rights that it has created. 

See Felker v. Turpin, 518 U.S. 651, 664 (1996) (“[J]udgments 

about the proper scope of the writ are ‘normally for Congress 

to make.’”) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 

(1996)); Morales v. Bezy, 499 F.3d 668, 670 (7th Cir. 2007) 

(quoting LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 

1998)) (“curtailing an optional statutory enlargement does not 

violate the suspension clause”).9

 

 

available to transferees such as Omar even if the Executive Branch 

has forfeited or waived an argument against the claims. 

9

 One can imagine a statutory habeas right that has existed for 

so long that the right has come to be considered part of the 

constitutionally guaranteed writ. See Boumediene, 553 U.S. at 746; 

INS v. St. Cyr, 533 U.S. 289, 300-01 (2001); cf. Washington v. 

Glucksberg, 521 U.S. 702, 710-23 (1997) (evolution of rights 

protected by substantive due process doctrine). But the FARR Act 

was only seven years old when the REAL ID Act was passed. It 

would be odd to think that Congress could entrench a statute 

against repeal – effectively amending the Constitution without 

observing the requirements of Article V – simply by passing a law 
19 

 The Seventh Circuit characterized a one-way ratchet 

theory of the kind advanced by Omar as “irrational.” 

Morales, 499 F.3d at 670. In his separate opinion in St. Cyr

(on a point the St. Cyr majority did not address), Justice 

Scalia labeled the one-way ratchet argument “too absurd to be 

contemplated.” INS v. St. Cyr, 533 U.S. 289, 342 (2001) 

(Scalia, J., dissenting and “contemplat[ing] it no further”). 

Other noted scholars and jurists have agreed. See, e.g., David 

L. Shapiro, Habeas Corpus, Suspension, and Detention: 

Another View, 82 NOTRE DAME L. REV. 59, 74 (2006) 

(“Surely, the guarantee [of the writ of habeas corpus] is not a 

one-way ratchet, in which every advance in the availability of 

the writ becomes part of the guarantee itself.”); cf. Swain v. 

Pressley, 430 U.S. 372, 384-85 (1977) (Burger, C.J., 

concurring) (no constitutional problem when Congress 

partially retracts statutory enlargement of habeas rights); 

Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack 

on Criminal Judgments, 38 U. CHI. L. REV. 142, 171 (1970) 

(“What Congress has given, Congress can partially take 

away.”). We likewise reject Omar’s argument that the REAL 

ID Act, to the extent it amended the FARR Act, violated the 

Constitution’s guarantee of habeas corpus.10

 

and allowing it to sit on the books for seven years. See Morales,

499 F.3d at 670.

10 In advancing his quasi-constitutional claims, Omar also cites 

INS v. St. Cyr, 533 U.S. 289 (2001). For two independent reasons, 

we think he over-reads that case. First, St. Cyr did not concern 

extradition or military transfers, but rather addressed removal of 

aliens under the immigration laws. Omar is not an alien facing 

removal, and Omar himself acknowledges that his case is not akin 

to that of an alien threatened with removal. See Omar Br. at 34-39. 

Second, in St. Cyr, the Supreme Court identified a potential 

violation of the Constitution’s habeas corpus guarantee only after 

examining the historical foundation of the claim St. Cyr asserted. 
20 

 In sum, Congress has no constitutional obligation to grant 

extradition and military transferees such as Omar a right to 

judicial review of conditions in the receiving country. The 

fact that Congress, in the FARR Act, created such a right for 

immigration transferees does not raise a constitutional 

problem simply because Congress did not also extend the 

right to extradition and military transferees.11

 

The history showed that St. Cyr’s claim – that he was eligible for 

discretionary relief from removal – “could have been answered in 

1789 by a common-law judge with power to issue the writ of 

habeas corpus.” 533 U.S. at 304-05. The Court in St. Cyr thus did 

not hold what Omar in effect argues: namely, that the 

Constitution’s habeas guarantee both (i) is unmoored from the 

historical scope of the writ and (ii) requires that Congress provide 

for judicial review of the Executive Branch’s compliance with 

every statutory responsibility Congress imposes on the Executive 

Branch. The Court in St. Cyr protected and enforced what it 

determined to be the historical scope of the writ. See id. at 300-05; 

cf. id. at 341-45 (Scalia, J., dissenting) (interpreting the Court’s 

opinion as enforcing a right that the Court determined to be within 

the historical scope of the writ). The Court simply left open the 

possibility that the habeas corpus right might be somewhat broader 

than it was in 1789. Cf. supra note 8. Here, the Supreme Court has 

already examined the relevant history and held that the right Omar 

asserts – a right to judicial review of conditions in the receiving 

country before he is transferred – is not encompassed by the 

Constitution’s guarantee of habeas corpus. See Munaf v. Geren, 

553 U.S. 674, 700-03 (2008).

11 Omar also invokes the constitutional avoidance doctrine. 

But the FARR Act and REAL ID Act are clear and, in light of 

Munaf, Omar lacks a credible constitutional argument. “A clear 

statute and a weak constitutional claim are not a recipe for 

successful invocation of the constitutional avoidance canon.” 

Cubaexport v. Dep’t of Treasury, No. 09-5196, slip op. at 14 (D.C. 

Cir. Mar. 29, 2011) (citing Clark v. Martinez, 543 U.S. 371, 381 

(2005)); see also St. Cyr, 533 U.S. at 299-300 (requiring “serious 
21 

* * * 

 In Munaf, the Supreme Court held that habeas corpus and 

due process do not give a transferee such as Omar a right to 

judicial review of conditions in the receiving country. 

Congress is free to establish additional statutory protections 

with respect to transfers, whether to correspond U.S. laws to 

evolving international law norms or for other policy reasons. 

Indeed, Congress has done so in the immigration context by 

allowing aliens in removal proceedings to obtain judicial 

review of conditions in the receiving country before being 

transferred. But Congress has not created such a right for 

extradition or military transferees such as Omar. Congress is 

not constitutionally barred from proceeding in that 

incremental manner when affording new statutory rights to 

transferees. 

 We affirm the judgment of the District Court. 

So ordered. 

 

constitutional problems” and a plausible “alternative interpretation 

of the statute” to apply constitutional avoidance canon). 
GRIFFITH, Circuit Judge, concurring in the judgment: The 

majority concludes that the FARR Act does not afford Omar 

“a right to judicial review of conditions in the receiving 

country.” Majority Op. 6. I agree that the statute grants Omar, 

who is being held in Iraq by the U.S. military, no right against 

being transferred to Iraqi authorities, but I disagree with the 

majority’s suggestion that we have no jurisdiction to consider 

his claim. Our quarrel over jurisdiction stems from my belief 

that the FARR Act “trigger[s] constitutional habeas” by 

giving Omar a colorable claim that his transfer to Iraqi 

authorities would be unlawful. Majority Op. 17 n.7 (emphasis 

omitted). When an American citizen is in U.S. custody, the 

Constitution’s guarantee of habeas corpus entitles him to 

assert any claim that his detention or transfer is unlawful. 

Because Congress may not deprive Omar of access to the 

courts without suspending the writ or repealing the statutory 

basis for his claim, neither of which it has done here, we must 

consider his argument on the merits. 

Section 2242(a) of the FARR Act states that it is U.S. 

policy 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.” Pub. L. No. 105-277, 

§ 2242(a), 112 Stat. 2681-1, 2681-822 (1998) (codified at 8 

U.S.C. § 1231 note). That gives Omar a colorable claim that it 

would be unlawful to transfer him to the Iraqi government, 

which might subject him to torture.1

 The federal habeas 

 

1

 I agree with the majority that Congress can “express a policy for 

the Executive Branch to follow without also creating a right to 

judicial enforcement of that policy.” Majority Op. 17. But Omar’s 

claim is that Congress did more than that in the FARR Act—that it 

gave him a judicially enforceable right against transfer to torture. 

Even though Omar’s reading of the FARR Act is wrong on the 

merits, the Constitution’s habeas corpus guarantee gives us 

jurisdiction to consider his claim. 
 2 

statute, 28 U.S.C. § 2241, gives us jurisdiction to hear such a 

claim from an American citizen, Munaf v. Geren, 553 U.S. 

674, 688 (2008), and the Supreme Court has repeatedly held 

that only the clearest of statements from Congress should be 

read as repealing our habeas jurisdiction, see Demore v. Kim, 

538 U.S. 510, 517 (2003) (observing that “where a provision 

precluding review is claimed to bar habeas review,” the 

Court’s cases require “a particularly clear statement that such 

is Congress’s intent”); INS v. St. Cyr, 533 U.S. 289, 299 

(2001) (“Implications from statutory text or legislative history 

are not sufficient to repeal habeas jurisdiction; instead, 

Congress must articulate [a] specific and unambiguous 

statutory directive[] to effect a repeal.”). 

Section 2242(d) of the FARR Act, which the majority 

suggests strips the federal courts of jurisdiction to hear 

Omar’s claim, does not speak with the required clarity. 

Although it leaves no doubt that the FARR Act does not itself 

“provid[e] any court jurisdiction” to hear claims outside the 

immigration context, it just as plainly leaves undisturbed our 

jurisdiction to hear FARR Act claims under 28 U.S.C. § 2241. 

A plurality of the circuits have reached the same conclusion. 

See Cadet v. Bulger, 377 F.3d 1173, 1182-83 (11th Cir. 

2004); 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); Cornejo-Barreto v. Seifert (Cornejo-Barreto I), 218 

F.3d 1004, 1016 n.13 (9th Cir. 2000). But see Mironescu v. 

Costner, 480 F.3d 664, 676 (4th Cir. 2007); Cornejo-Barreto 

v. Seifert (Cornejo-Barreto II), 379 F.3d 1075, 1086 (9th Cir. 

2004), vacated as moot 389 F.3d 1307 (9th Cir. 2004) (en 

banc). The different and much clearer language Congress 

used in the same subsection to strip our jurisdiction to review 

FARR Act regulations confirms this reading. Congress has 

told us in unmistakable terms that, “[n]otwithstanding any 
 3 

other provision of law,” no court “ha[s] jurisdiction to review 

the regulations adopted to implement [the FARR Act],” and 

that “nothing in [the FARR Act] shall be construed as 

providing any court jurisdiction” to hear a claim like Omar’s. 

Pub. L. No. 105-277, § 2242(d), 112 Stat. at 2681-822. 

“Nothing . . . but a different intent explains the different 

treatment.” Lindh v. Murphy, 521 U.S. 320, 329 (1997). 

While section 2242(d) does not purport to deprive us of 

jurisdiction to consider Omar’s claim against transfer-totorture, section 106 of the REAL ID Act does. See Pub. L. 

No. 109-13, § 106, 119 Stat. 231, 310 (2005) (codified at 8 

U.S.C. § 1252(a)(4)). In that provision Congress declared that 

we do not have power to consider FARR Act claims outside 

of the immigration context, “[n]otwithstanding any other 

provision of law . . . including section 2241 of title 28 . . . or 

any other habeas corpus provision.” Id. This is precisely the 

sort of “clear, unambiguous, and express statement of 

congressional intent to preclude judicial consideration” that 

the Supreme Court’s cases require for Congress to strip 

statutory habeas jurisdiction. St. Cyr, 533 U.S at 314; see also

Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 514-15 (D.C. 

Cir. 2009) (holding that the REAL ID Act strips our 

jurisdiction to consider FARR Act claims, but not passing on 

whether this would create a Suspension Clause problem if the 

issue were pressed). And thus Omar’s argument presents a 

novel issue: whether Congress can strip the courts of habeas 

jurisdiction to consider a statutory claim that a transfer is 

unlawful without suspending the writ. As I read the cases and 

the history, the assumption that undergirds the Suspension 

Clause is that a prisoner is entitled to raise any claim that his 

detention or transfer is unlawful, and Congress cannot deny 
 4 

him access to the courts to assert such a claim unless it repeals 

the basis for the claim or suspends the writ.2

The majority argues that we need not reach the merits of 

Omar’s claim because he “has no constitutional right at stake 

here.” Majority Op. 17. But the majority’s view of the habeas 

jurisdiction protected by the Suspension Clause is too 

cramped. In St. Cyr, the Supreme Court, canvassing the 

history of habeas, found “no suggestion that habeas relief in 

cases involving Executive detention was only available for 

constitutional error,” 533 U.S. at 302-03, and concluded 

instead that the Great Writ “has always been available to 

review the legality of Executive detention,” regardless of 

whether a prisoner’s claim is based on “the Constitution or 

laws or treaties of the United States.” Id. at 305 (internal 

quotation marks omitted). 

At common law, the writ of habeas corpus extended to all 

detention “contra legem terrae,” i.e., against the law of the 

land, 1 EDWARD COKE, THE SECOND PART OF THE INSTITUTES 

OF THE LAWS OF ENGLAND 54 (Williams S. Hein Co. 1986) 

(1642), and was “efficacious . . . in all manner of illegal 

confinement,” 3 WILLIAM BLACKSTONE, COMMENTARIES

*131. Nothing in the historical record suggests that at the time 

of the Founding a prisoner could not raise “extraconstitutional” statutory claims when challenging his 

detention in habeas. Eighteenth-century English habeas courts 

would order the release of prisoners whose detention violated 

a statute. See, e.g., King v. Nathan, (1724) 93 Eng. Rep. 914 

(K.B.); 2 Strange 880 (considering bankrupt debtor’s statutory 

 

2

 Of course, we have no jurisdiction to consider a habeas 

petitioner’s “wholly insubstantial and frivolous” claim, Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Bell v. 

Hood, 327 U.S. 678, 685 (1946)), but the majority does not suggest 

that Omar’s FARR Act claim falls in that category. 
 5 

argument); Hollingshead’s Case, (1702) 91 Eng. Rep. 307 

(K.B.); 1 Salkeld 351 (same); Mellichip’s Case, Morning 

Chronicle, June 18, 1777 (Mansfield, J.), quoted in 1 JAMES 

OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH 

OF ENGLISH LAW IN THE EIGHTEENTH CENTURY 78 (1992) 

(allowing seaman to raise statutory and common law claims 

that he was not subject to impressment). State habeas courts at 

the time of the Founding also entertained statutory claims. 

See, e.g., Kennedy & Co. v. Fairman, 2 N.C. (1 Hayw.) 408 

(N.C. Super. Ct. L. & Eq. 1796) (debtor); Respublica v. 

Keppele, 2 U.S. 197, 198-99 (Pa. 1793) (indentured servant); 

Respublica v. Betsey, 1 U.S. 469 (Pa. 1789) (slave); see also

Commonwealth v. Downes, 41 Mass. (24 Pick.) 227 (1836) 

(Shaw, C.J.) (military enlistee); In re Stacy, 10 Johns. 328, 

333-34 (N.Y. Sup. Ct. 1813) (Kent, C.J.) (ordering release of 

civilian in military custody accused of treason). If the 

Suspension Clause “protects the writ as it existed in 1789,” St. 

Cyr, 533 U.S. at 301 (internal quotation marks omitted), then 

it surely allows a prisoner to argue that his transfer violates an 

act of Congress. 

The majority also suggests an alternative theory that the 

Suspension Clause only applies to statutory claims that were 

available in 1789. Majority Op. 19 n.10. But St. Cyr itself 

involved an alien whose habeas petition sought to block his 

removal on the basis of a claim under the Immigration and 

Nationality Act of 1952, which roughly paralleled a claim that 

Congress first created in the Immigration Act of 1917. St. 

Cyr, 533 U.S. at 294. Notwithstanding the twentieth-century 

vintage of the asserted statutory right, the Court found that the 

claim “could have been answered in 1789 by a common-law 

judge with power to issue the writ of habeas corpus,” because 

it challenged “the legality of Executive detention.” Id. at 305. 

As the St. Cyr Court understood, a prisoner in executive 

detention could make any argument that his detention was 
 6 

unlawful, regardless of whether that claim was based on 

Magna Carta or the most recent innovation of Parliament. The 

majority is correct that Omar is invoking a relatively new 

statute to make his claim and that, before the FARR Act, 

“[h]abeas corpus [was] held not to be a valid means of inquiry 

into the treatment the [prisoner] is anticipated to receive in the 

requesting state.” Munaf, 553 U.S. at 685 (quoting M. CHERIF 

BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES 

LAW AND PRACTICE 921 (5th ed. 2007)). But Omar has a 

colorable claim that the FARR Act has overridden that 

traditional rule, and the Constitution’s habeas corpus 

guarantee entitles him to raise that claim even though it relies 

on a recently enacted statute. The historical pedigree of the 

asserted due process right in Munaf only mattered because the 

existence of a due process right depends on whether the right 

is historically rooted. 

The majority also attempts to distinguish and limit the 

force of St. Cyr by observing that the Court there “addressed 

removal of aliens under the immigration laws.” Majority Op. 

19 n.10. But St. Cyr did not distinguish between removal of 

aliens and other forms of executive detention. Rather, the 

Court found support for its approach in a wide range of 

precedents beyond the immigration context, including 

military detention. See St. Cyr, 533 U.S. at 301-02 (citing 

habeas cases brought by prisoners of war, impressed seamen, 

slaves, apprentices, asylum inmates, bankrupt debtors, and 

criminal defendants, among others). The St. Cyr Court 

reasoned that the Suspension Clause entitles prisoners to raise 

any statutory claim that a proposed transfer to another country 

would be unlawful, see id. at 305, and the majority offers no 

support for its contention that this constitutional principle 

applies only in immigration cases. 
 7 

I agree with the majority that the Suspension Clause is 

not a “one-way ratchet.” Majority Op. 18. Congress can 

always repeal statutory rights or create new authority for 

detention, thereby limiting the range of habeas claims that 

federal prisoners may bring. But that is not what Congress has 

done here. It has not repealed section 2242(a), the ground for 

Omar’s claim, but has instead sought to limit his ability to 

bring his claim in federal court. The majority counters that 

there is no real difference between expressly repealing a right 

and accomplishing the same end by stripping habeas 

jurisdiction. Majority Op. 17 n.8. I disagree. A core premise 

of the Suspension Clause is that the form of legislative action 

can make a great deal of difference in terms of political 

accountability: repealing a right tends to focus the public’s 

attention in a way that the lawyerly maneuver of jurisdiction 

stripping does not. See, e.g., 1 WILLIAM BLACKSTONE,

COMMENTARIES *136 (explaining that a direct assault on 

rights “must at once convey the alarm of tyranny throughout 

the whole kingdom,” whereas denying a prisoner access to the 

courts “is a less public, a less striking, and therefore a more 

dangerous engine of arbitrary government”). In fact, the 

Suspension Clause was inspired by Parliament’s use of 

jurisdiction stripping to prevent American prisoners from 

asserting their statutory and common law rights, see PAUL D.

HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO EMPIRE 251-

53 (2010), and Alexander Hamilton thought that the 

Suspension Clause’s limits on jurisdiction stripping so 

enhanced the democratic check on wrongful detentions that it 

rendered a bill of rights unnecessary, see THE FEDERALIST

No. 84. The Constitution vests in Congress the power to 

deprive prisoners of judicially enforceable rights, but 

“requires that it be made to say so unmistakably” by either 

suspending the writ or repealing the right “so that the people 

will understand and the political check can operate.” Henry 

M. Hart, Jr., The Power of Congress to Limit the Jurisdiction 
 8 

of Federal Courts: An Exercise in Dialectic, 66 HARV. L.

REV. 1362, 1399 (1953). 

Because Congress has neither suspended the writ nor 

repealed the statutory basis for Omar’s cause of action, we 

must consider the merits of his claim. I would follow the 

Supreme Court’s suggestion in Munaf v. Geren that the FARR 

Act does not “address[] the transfer of an individual located in 

Iraq to the Government of Iraq.” 553 U.S. at 703 n.6. Omar 

cannot be “return[ed]” to Iraq for a simple reason: “he is 

already there.” Id. The U.S. military arrested him in Iraq, and 

he was subsequently convicted in an Iraqi court for violating 

Iraqi law. He now seeks to use the FARR Act to prevent the 

Iraqi authorities from bringing him to justice, which would 

effectively “defeat the criminal jurisdiction of a foreign 

sovereign.” Id. at 696. Because there is nothing in the FARR 

Act to suggest that Congress could have intended such a 

result, I concur in the majority’s judgment.