Judge Urbina’s decision came mere days after he declared that the case raised major Separation of Power implications due to the collision of “judicial versus executive branch authority.” His opinion is the most recent in a series of significant instances in which courts have followed the Supreme Court’s lead in affirming that presidential power “is not a blank check when it comes to the rights of the Nation’s citizens.”

The order results from a lawsuit filed in December 2005 by the Brennan Center for Justice at NYU School of Law, with the law firm Burke Pyle LLC and the MacArthur Center for Justice at the University of Chicago Law School. This suit was filed on behalf of Mr. Shawqi Omar by his wife and son, all American citizens. The suit seeks to vindicate the constitutional rights of Mr. Omar, a United States citizen unlawfully detained in Iraq by the United States Government since October 2004.

In February 2006, the Brennan Center and co-counsel sought emergency relief from Judge Urbina because it appeared the government was on the verge of transferring Mr. Omar to Iraqi custody. Granting emergency relief, Judge Urbina sought briefing from the parties on “the constitutional implications” of the case. The government then argued that the federal courts have no role when a United States citizen is detained overseas. It also argued that United States forces in Iraq were immune from judicial review because they operated as part of a multinational force.

Judge Urbina rejected these arguments in no uncertain terms. Noting the “strong evidence” that Mr. Omar is in U.S. custody, the Court rejected “‘legalistic’ and ‘formalist’” efforts to avoid judicial review based on the multinational veneer of forces in Iraq. More significantly, Judge Urbina rejected the government’s idea that courts have no role when the liberty of a U.S. citizen is at issue. He stated that “it is in the public’s interest to have a judiciary that does not shirk its obligations.”

Click here to review the order and briefings.

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