MUNAF et al. v. GEREN, SECRETARY OF THE ARMY, et al.

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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 com
mitted crimes there. They were each captured by military forces oper
ating 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 next-friend ha
beas 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 preclude review be
cause Omar, unlike the habeas petitioners in Hirota, had yet to be con
victed 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 con
trolled and required that the petition be dismissed for lack of jurisdic
tion because the American forces holding Munaf were operating as part
of an international force—the MNF–I. The D. C. Circuit agreed and
*Together with No. 07–394, Geren, Secretary of the Army, et al. v. Omar
et al., also on certiorari to the same court.

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affirmed. It distinguished its prior decision in Omar, which upheld ju
risdiction 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 multina
tional force is rejected. The habeas statute, 28 U. S. C. § 2241(c)(1), ap
plies 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 charac
ter 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 re
spects. The Court in Hirota may have found it significant, in consider
ing 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 indi
cated that habeas jurisdiction can depend on citizenship. See, e. g.,
Johnson v. Eisentrager, 339 U. S. 763, 781. Pp. 685–688.
2. Federal district courts, however, may not exercise their habeas ju
risdiction to enjoin the United States from transferring individuals al
leged to have committed crimes and detained within the territory of a
foreign sovereign to that sovereign for criminal prosecution. Because
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. 689–705.
(a) The District Court abused its discretion in granting Omar a
preliminary injunction, which the D. C. Circuit interpreted as prohib
iting the Government from (1) transferring Omar to Iraqi custody,
(2) sharing with the Iraqi Government details concerning any decision

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to release him, and (3) presenting him to the Iraqi courts for investiga
tion 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 Espı´rita
Beneficente Unia˜ o do Vegetal, 546 U. S. 418, 428. But neither the Dis
trict 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 uphold
ing 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 appro
priate 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. 689–692.
(b) Petitioners argue that they are entitled to habeas relief because
they have a legally enforceable right not to be transferred to Iraqi au
thorities for criminal proceedings and because they are innocent civil
ians 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 offenses 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. 692–705.
(1) Habeas is governed by equitable principles. Thus, pruden
tial concerns may “require a federal court to forgo the exercise of its
habeas . . . power.” Francis v. Henderson, 425 U. S. 536, 539. Here,

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the unusual nature of the relief sought by petitioners suggests that ha
beas is not appropriate. Habeas is at its core a remedy for unlawful
executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536. The typi
cal 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 author
ities 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 proceed
ings 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 ex
clusive 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 author
ity. But habeas corpus does not bar the United States from transfer
ring 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. 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. 693–700.

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(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 na
tional 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 sov
ereign 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 stand
ards for basic prisoner needs. The Judiciary is not suited to second
guess such determinations. Pp. 700–703.
(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. Val
entine 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. 704–705.
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,
post, p. 706.
Then-Deputy Solicitor General Garre argued the cause
for respondents in No. 06–1666 and petitioners in No. 07–394.
With him on the briefs were former Solicitor General Clem
ent, Acting Assistant Attorney General Bucholtz, Daryl

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Joseffer, Douglas N. Letter, Jonathan H. Levy, and Lewis
S. Yelin.
Joseph Margulies argued the cause for petitioners in
No. 06–1666 and respondents in No. 07–394. With him on
the brief were Aziz Z. Huq, Jonathan Hafetz, and Eric M.
Freedman.†
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 na
tions, 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 individ
uals 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 habeas
corpus relief arising from the MNF–I’s detention of Ameri
can citizens who voluntarily traveled to Iraq and are alleged
to have committed crimes there. We are confronted with
†Briefs of amici curiae urging reversal in No. 06–1666 and affirmance
in No. 07–394 were filed for the American Bar Association by William H.
Neukom, David J. Cynamon, and Matthew J. MacLean; for the Associated
Press et al. by Paul M. Smith; for the Constitution Project et al. by Chris
topher T. Handman, Sharon Bradford Franklin, and John W. Whitehead;
for Former U. S. Diplomats and National Security Specialists by Harold
Hongju Koh; for Non-Governmental Organizations by John J. Gibbons,
Lawrence S. Lustberg, Baher Azmy, and Jenny-Brooke Condon; and for
M. Cherif Bassiouni et al. by Richard M. Zuckerman.
Briefs of amici curiae were filed in both cases for the National Institute
of Military Justice by Daniel S. Floyd and Stephen A. Saltzburg; and for
Professors of Constitutional Law and of the Federal Courts by Daniel F.
Kolb and Judith Resnik.

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two questions. First, do United States courts have jurisdic
tion 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 exer
cise 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 cir
cumstances 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 au
thority 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 (quoting U. N. Secu
rity 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 exam
ple, 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 ulti
mate responsibility for the arrest and imprisonment of indi
viduals 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 American mili
tary 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

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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 facilitat
ing his group’s connection with other terrorist groups, bring
ing foreign fighters into Iraq, and planning and executing
kidnapings in Iraq. The 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 implicat
ing 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 con
ducted 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 that he was an
enemy combatant in the war on terrorism. In accordance
with Article 5 of the Geneva Convention, Omar was permit
ted to hear the basis for his detention, make a statement,
and call immediately available witnesses.

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In addition to the review of his detention by the MNF–I
Tribunal, Omar received a hearing before the Combined Re
view 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 Tribu
nal, concluded that Omar’s continued detention was neces
sary 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 Cen
tral 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. C to Pet. for Cert. in No. 07–394, at 59a.
The order directed that
“the [United States], their agents, servants, employees,
confederates, and any persons acting in concert or par
ticipation with them, or having actual or implicit knowl
edge 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 opin
ion.” 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
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 Ap
peals distinguished Hirota on the ground that Omar, unlike
the petitioner in that case, had yet to be convicted by a for
eign tribunal. 479 F. 3d, at 7–9. The Court of Appeals rec

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ognized, 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 up
held 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 jurisdic
tional 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 Govern
ment “undeniably h[ad] a right to do.” Id., at 19. We
granted certiorari. 552 U. S. 1074 (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
kidnaped and held captive for two months. After the jour
nalists were freed, MNF–I forces detained Munaf based on
their belief that he had orchestrated the kidnapings.
A three-judge MNF–I Tribunal conducted a hearing to de
termine whether Munaf ’s detention was warranted. The
MNF–I Tribunal reviewed the facts surrounding Munaf ’s
capture, interviewed witnesses, and considered 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.

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During his CCCI trial, Munaf admitted on camera and in
writing that he had facilitated the kidnaping of the Roma
nian 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 kidnaping. 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 Hir
ota controlled: Munaf was “in the custody of coalition troops
operating under the aegis of MNF–I, who derive their ulti
mate 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 Munaf ). The
Court of Appeals, “[c]onstrained by precedent,” agreed with
the District Court that Hirota controlled and dismissed Mu
naf ’s petition for lack of jurisdiction. 482 F. 3d, at 583. It
distinguished the prior opinion in Omar on the 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 dis
missed for want of jurisdiction because “Munaf is an Ameri
can 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,

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529 (1957), that a “sovereign nation has exclusive jurisdiction
to punish offenses against its laws committed within its bor
ders,” 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. 1074 (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 en
tertain 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 trea
ties 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, 338 U. S., at 198). Omar and Munaf are thus held
pursuant to international authority, 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 Amer
ican chain of command. Id., at 21. The MNF–I itself oper
ates subject to a unified American command. Id., at 23.
1 As noted above, Munaf ’s conviction was subsequently vacated by an
Iraqi appellate court, and he is awaiting a new trial.
2 These 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.

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“[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 hold
ing Munaf and Omar. In light of these admissions, it is un
surprising that the United States has never argued that it
lacks the authority to release Munaf or Omar, or that it re
quires 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 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, Japa
nese citizens sought permission to file habeas corpus appli
cations directly in this Court. The petitioners were non
citizens 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 capac

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ity 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 fore
going circumstances,” United States courts had “no power
or authority to review, to affirm, set aside or annul the judg
ments and sentences” imposed by that tribunal. Ibid. Ac
cordingly, the Court denied the 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 tribu
nal 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 con
tends that the same was true of the tribunal at issue in Hir
ota. 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., con
curring), and were subject 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 signifi
cant, 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 “fore
going circumstances” cited in the per curiam opinion dispos
ing of the case, id., at 198. They were highlighted only
in Justice Douglas’s belated opinion concurring in the re
sult, published five months after that per curiam. Id., at

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199, n.*. Indeed, arguing before this Court, Solicitor Gen
eral 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 acknowl
edges 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 interna
tional 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 citi
zens”); id., at 585 (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.
3 The circumstances in Hirota differ in yet another respect. The peti
tioners 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, how
ever, 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.

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III
We now turn to the question whether United States dis
trict courts may exercise their habeas jurisdiction to enjoin
our Armed Forces from transferring individuals detained
within another sovereign’s territory to that sovereign’s gov
ernment for criminal prosecution. The nature of that ques
tion requires us to proceed “with the circumspection appro
priate 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 opera
tions conducted by American forces overseas. We there
fore approach these questions cognizant that “courts tradi
tionally 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
(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 petition
ers 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 ‘information-sharing.’ ” Brief for
Habeas Petitioners 61. As Judge Brown noted in her dis
sent, such a bar would impermissibly “enjoin the United
States military from sharing information with an allied for
eign 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,

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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 Espı´rita Beneficente Unia˜ o 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 mer
its of Omar’s habeas petition. Instead, the District Court
concluded that the “jurisdictional issues” presented ques
tions “so serious, substantial, difficult and doubtful, as to
make them fair ground for litigation and thus for more delib
erative investigation.” Omar v. Harvey, 416 F. Supp. 2d 19,
23–24, 27 (DC 2006) (internal quotation marks omitted; em
phasis added).
The D. C. Circuit made the same mistake. In that court’s
view, the “only question before [it] at th[at] stage of the liti
gation 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 rea
son 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 suc
cess 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, with

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out 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 prelimi
nary 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 petition
ers’ claims is clear. Review of a preliminary injunction “is
not confined to the act of granting the injunctio[n], but ex
tends as well to determining whether there is any insupera
ble objection, in point of jurisdiction or merits, to the mainte
nance 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. In
dependence Shares Corp., 311 U. S. 282, 287 (1940) (“ ‘If insu
perable objection to maintaining the bill clearly 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 prac
tice in equity as administered in England and this country,”
a reviewing court has the power on appeal from an interlocu
tory 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 dis
missed 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 Re
lated Matters § 3921.1, p. 32 (2d ed. 1996).
Adjudication of the merits is most appropriate if the in
junction rests on a question of law and it is plain that the
plaintiff cannot prevail. In such cases, the defendant is enti
tled to judgment. See, e. g., Deckert, supra, at 287; North

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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 on
going 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 Govern
ment is entitled to judgment as a matter of law, it is appro
priate 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 enforce
able right” not to be transferred to Iraqi authority for crimi
nal 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 trans
fer 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 com
mitted 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.

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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 ad
ministration 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 stat
ute 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
require,” § 2243. See Danforth v. Minnesota, 552 U. S. 264,
278 (2008). Likewise, the writ did not issue in England “as
of mere course,” but rather required the petitioner to demon
strate 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 ques
tion, 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 prose

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cution—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 sover
eign’s borders.
The habeas petitioners do not dispute that they voluntarily
traveled to Iraq, that they remain detained within the sover
eign 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 Mohammad, 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 over
turned 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 ob
tained 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 In
junctive Relief in Munaf v. Harvey, No. 06–5324 (CADC,
Oct. 25, 2006), pp. 18–19)).
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 abso
lute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136
(1812). See Wilson, supra, at 529 (“A sovereign nation has

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exclusive jurisdiction to punish offenses against its laws com
mitted 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 rights
guaranteed by our Constitution. “When an American citi
zen commits a crime in a foreign country he cannot complain
if required to submit to such modes of trial and to such pun
ishment 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 trans
fer” that is “protected wherever the government seizes a citi
zen.” 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 Consti
tution precludes the Executive from transferring a prisoner
to a foreign country for prosecution in an allegedly unconsti
tutional 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

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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 (1957).
In the District Court’s view, to permit the transfer to Japa
nese 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 juris
diction “to punish offenses against its laws committed within
its borders,” unless it had surrendered that jurisdiction.
Id., at 529. Consequently, even though Japan 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 en
join Girard’s transfer to the Japanese authorities. Id., at
529–530.
Likewise, in Neely, supra, this Court held that habeas cor
pus 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 ar
rested 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 jurisdic
tion of the United States against the laws of a foreign coun
try.” Ibid. Neely alleged no claim for which a “discharge
on habeas corpus” could issue. Id., at 125. Accordingly,

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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 al
leged violations of its law, yet nonetheless request an injunc
tion prohibiting the United States from transferring them to
Iraqi custody. But as the foregoing cases make clear, ha
beas 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 “trans
fer” claim. That claim fails for the same reasons the trans
fer claim fails, given that the release petitioners seek is re
lease 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 com
manding 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 Gov
ernment pending their prosecution in Iraqi courts, Moham
med, 456 F. Supp. 2d, at 117, release of any kind would inter
fere with the sovereign authority of Iraq “to punish offenses

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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, at 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, 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 proceed
ings). 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 peacekeep
ing 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 interfer
ence with a foreign criminal system is too much. They con
cede that “it is axiomatic that an American court does not
provide collateral review of proceedings in a foreign tribu
nal.” 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 pris
oner detained within a foreign sovereign’s territory to pre
vent 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

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foreign sovereigns that preclude judicial scrutiny of foreign
convictions necessarily render invalid attempts to shield citi
zens from foreign prosecution in order to preempt such non
reviewable adjudications.” Omar, supra, 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 legiti
macy 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, 417–418 (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” ’ ” (quot
ing 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; Wil
son 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 de
tainees were captured by our Armed Forces for engaging in
serious hostile acts against an ally in what the Government
4 The habeas petitioners claim that the injunction only bars Omar’s pres
entation 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 en
tered 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.

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refers to as “an active theater of combat.” Brief for Fed
eral 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 unwar
ranted judicial intrusion into the Executive’s ability to con
duct military operations abroad. Our constitutional frame
work “requires that the judiciary be as scrupulous not to
interfere with legitimate Army matters as the Army 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 em
bezzlement 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 cus
tody 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 ad
dressed 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

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practices in foreign countries and to determine national pol
icy 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 stipulations between that country and
the United States.” 180 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 con
cerns—as it was in that case—and by a decision of the Exec
utive 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 Jus
tice Marshall explained in the Schooner Exchange, “exemp
tions 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 consti
tutional rights alleged in Wilson and Neely, and are gov
erned by the same principles.5
5 The United States has in fact entered into treaties that provide proce
dural 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

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702 MUNAF v. GEREN
Opinion of the Court
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 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 Minis
try—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 as
sessment of the foreign country’s legal system and . . . the
Executive[’s] . . . ability to obtain foreign assurances it con
siders reliable.” Brief for Federal Parties 47.
The Judiciary is not suited to second-guess such determi
nations—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. Madi
son) (“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 for
eign policy issues, such as whether there is a serious pros
pect 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. In
witnesses, obtain favorable witnesses, and communicate with a repre
sentative of the United States).

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deed, the other branches possess significant diplomatic tools
and leverage the judiciary lacks.” 479 F. 3d, at 20, n. 6 (dis
senting opinion).
Petitioners briefly argue that their claims of potential tor
ture 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.
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
6 We 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 “return[ed]” 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, 23
I. L. M. 1027, 1028 (“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 immigra
tion 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

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704 MUNAF v. GEREN
Opinion of the Court
2
Finally, the habeas petitioners raise the additional argu
ment that the United States may not transfer a detainee to
Iraqi custody, not because it would be unconstitutional 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 depart
ment of the government to seize [him] and surrender him to
a foreign power,’ ” in the absence of a pertinent constitu
tional 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, petitioners are being held by the United States,
acting as part of the 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.
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]”).

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Cite as: 553 U. S. 674 (2008) 705
Opinion of the Court
The habeas petitioners further contend that this Court’s
decision in Wilson supports their argument that the Execu
tive 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—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 prin
ciple 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 prosecu
tion for those offenses, Munaf and Omar are being held in
Iraq by American forces operating pursuant to a U. N. man
date and at the request of the Iraqi Government. Petition
ers concede that Iraq has a sovereign right to prosecute
them for alleged violations of its law. Yet they went to fed
eral 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.

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706 MUNAF v. GEREN
Souter, J., concurring
Justice Souter, with whom Justice Ginsburg and Jus
tice Breyer join, concurring.
The Court holds that “[u]nder circumstances such as those
presented here, . . . habeas corpus provides petitioners with
no relief.” Ante, at 680. The Court’s opinion makes clear
that those circumstances include the following: (1) Omar and
Munaf “voluntarily traveled to Iraq.” Ante, at 694. They
are being held (2) in the “territory” of (3) an “ally” of the
United States, ante, at 700, (4) by our troops, see ante, at
685, (5) “during ongoing hostilities” that (6) “involv[e] our
troops,” ante, at 700. (7) The government of a foreign sov
ereign, Iraq, has decided to prosecute them “for crimes com
mitted on its soil.” Ante, at 694. And (8) “the State De
partment has determined that . . . 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.” Ante, at 702
(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.” Ibid. 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 prosecu
tion 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 mis
treatment at the receiving government’s hands is a proper
matter for the political branches to consider, see ante, at
700–701, 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.

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Souter, J., concurring
And although the Court points out that habeas is aimed
at securing release, not protective detention, see ante, at
693–694, 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).