University of Miami International and Comparative Law Review


Karen Shafrir


In 2004-05, two American Citizens, Shaqir Omar and Mohamed Munaf were separately arrested in Iraq and placed in the Camp Cropper Military Facility, pending adjudication. Both prisoners filed writs of habeas corpus in the United States District Court for the District of Columbia. The primary issue that the lower courts grappled with was whether or not the courts had jurisdiction to hear the petitions. After various appeals, the United States Supreme Court concluded that the federal courts did have jurisdiction to entertain the habeas petitions but that the petitions would fail on the merits. This paper argues that the standard set forth by the Supreme Court for jurisdiction over habeas jurisdiction, "actual custody" is too formalistic and ultimately antithetical to the statutory habeas provision found in 28 U.S. C. § 2241. The paper concludes that rather than the limited "actual custody" threshold, the Court should have used the more liberal "constructive custody" standard recently articulated in various war-on-terror cases.