Munaf v. Geren

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Authorship: Analysis by Lyle Denniston.

1 Briefs and Documents
- 1.1 Certiorari stage
- 1.2 Merits stage
2 Argument Preview
3 Oral Argument Recap
- 3.1 Lyle Denniston
- 3.2 Kevin Russell
4 Opinion Analysis
5 Links and further information
- 5.1 SCOTUSblog

[edit] Briefs and Documents

Docket: 06-1666

Issue: Whether federal courts have jurisdiction to consider a habeas petition of a U.S. citizen detained by U.S.-led coalition forces in Iraq pending a transfer to Iraqi authorities following a conviction in an Iraqi criminal court.

Opinion below (D.C. Circuit)

[edit] Certiorari stage

[edit] Merits stage

Amicus briefs

[edit] Argument Preview

As the war in Iraq entered its sixth year, the Supreme Court had before it for the first time test cases growing out of the U.S. military’s involvement in that conflict. As in several decisions emerging out of the global “war on terrorism,” the Court will have something to say about the Iraq war by analyzing the rights of detainees captured during military conflict. The new cases of Geren v. Omar (07-394) and Munaf v. Geren (07-1666) involve citizen-detainees, now in the custody of U.S. forces in Iraq; the two captives – like Guantanamo Bay prisoners in terrorism cases -- are seeking the aid of U.S. courts.

[edit] Background

The U.S. invasion of Iraq in 2003 and the U.S. military’s continuing role in trying to shore up the new government of that country has produced little legal activity in American tribunals, aside from prosecutions of U.S. service members for their roles in torture or atrocities toward prisoners or civilians in Iraq. Those cases, though, have not required American courts to delve into legal questions over the U.S. involvement in the war. The consolidated gates of Geren v. Omar and Munaf v. Geren, however, may require just that.

Those larger questions, with potentially significant foreign policy consequences, are intertwined with the legal fate of two men, both of whom hold U.S. citizenship as well as citizenship in another country. The two men are Sunni Muslims, and both fear torture if they are transferred to Iraqi officials.

One is Shawqi Ahmed Omar, who is a citizen of the U.S. as well as of Jordan. Omar was arrested by U.S. military forces in Iraq at his home in Baghdad in October 2004. The military claims he was part of a terrorist network, and has declared him to be an “enemy combatant.” He has been held in various U.S. military prisons in Iraq, and currently is in custody at Camp Cropper near Baghdad International Airport. He insists he is not a terrorist, and that he has done nothing wrong. However, a military panel has decided to turn him over to an Iraqi criminal court for investigation and prosecution for crimes under Iraqi law. His wife and his son are attempting to get his release through a habeas challenge. A U.S. District Court judge in Washington has temporarily barred the U.S.government from transferring him to Iraqi custody. That order has been upheld by the D.C. Circuit Court.

The other man is Mohammad Munaf, who is a citizen of the U.S. as well as of Iraq. U.S. and Iraqi authorities asserted that he was involved in the kidnap and detention of several Romanian journalists in Iraq for whom Munaf serves as a translator and guide. He insists he is not a terrorist nor a member of any terrorist or military group. Munaf was arrested, and a military panel decided he was a “security detainee,” and concluded that he should be turned over to an Iraqi criminal court for investigation and prosecution. The Iraqi court convicted him of charges related to his alleged role in the kidnapping-for-hire of the journalists. He was sentenced to death by hanging. He appealed his conviction, and it was overturned by the Iraqi Federal Court of Cassation on Feb. 19 for several legal flaws, but he is to remain in custody while a further investigation proceeds in a lower court. Before the decision was made to turn him over for the prosecution that later led to the guilty verdict, Munaf’s sister challenged his detention in a habeas corpus petition. A U.S. District Court judge ruled that U.S. courts had no jurisdiction over Munaf. His appeal was rejected by the D.C. Circuit Court, but there is a temporary order that bars his transfer to Iraq.

The differing outcomes in Omar’s and Munaf’s cases at the Circuit Court – U.S. courts may hear Omar’s case, but not Munaf’s -- apparently provided the main rationale for the Supreme Court to agree review both decisions, consolidating an appeal by U.S. Army Secretary Pete Geren in Omar’s case and an appeal by Munaf in the other case.

As the two cases reached the Supreme Court, the core dispute appears to be over the nature of U.S. military activity in Iraq, especially over how to define the coalition forces there and the U.S. part in them, and the implications of that for U.S. District Court jurisdiction to hear habeas challenges to the transfer of the two men to Iraqi authorities. The cases do not involve any claim by the two citizen detainees that Iraq courts have no authority to try individuals for crimes committed in that country, but rather are challenging only their detention by U.S. military forces. The U.S. military is keeping them prisoner, not any international entity, they contend. The government, however, treats the two cases as potential threats to the sovereignty of foreign nations to try crimes committed on their own soil.

The Circuit Court ruled differently in the two cases by drawing a distinction between the two men’s legal situations – Omar has not been tried, but Munaf has been tried and convicted. In Omar’s case, the Circuit Court said that the case was not controlled by the Supreme Court’s post-World War II ruling in Hirota v. MacArthur (decided in 1948) because that case did not involve U.S. citizens who have been convicted but rather Japanese nationals who had been convicted. Since Omar had not yet been charged or convicted, he was not trying to challenge a foreign court’s authority to conduct trials of crimes abroad. About two months after the ruling in Omar’s case, a different panel of the Circuit Court ruled that Munaf could not proceed in U.S. courts. That panel felt it was bound by the Hirota decision, because he had been convicted and sentenced in a foreign court. His U.S. citizenship, the panel said, did not take his case out of the reach of the Hirota decision.

[edit] Petitions for Certiorari

Because Munaf’s lawyers did not seek rehearing in the Circuit Court, his appeal reached the Supreme Court first, in mid-June 2007. The government unsuccessfully sought rehearing in the Circuit Court, but was denied, so appealed to the Justices in September 2007. The cases were considered together, and granted on Dec. 7 for consolidated review.

Munaf’s petition is based upon the assertion that he is actually being held only by U.S. military forces, because they have exclusive control over him. The appeal raised three questions: whether U.S. courts’ habeas jurisdiction is blocked because the U.S. military in Iraq claims to be operating as part of a multi-national force, whether the Court will extend the Hirota decision beyond the specific circumstances of that case, and whether U.S. courts have authority to stop the transfer of a U.S. citizen to carry out a criminal sentence, if the convicting and sentencing came after the habeas challenge had been filed.

The petition assails the lower court for relying, in its denial of habeas jurisdiction, on “the bare fact of Mr. Munaf’s foreign conviction, along with America’s participation” in the military coalition in Iraq. The Circuit Court, it says, combined those two factors “by some uncertain alchemy to strip a federal court of its power to examine the lawfulness of a citizen’s detention and threatened transfer.”

On the key point of U.S. participation in the Iraqi military coalition, that petition asserts that the U,S, is involved only as a result of “an executive agreement” that “cannot suspend the Great Writ for U.S. citizens.”

The Army secretary’s petition, for the government, is based in large part in the character of the “international military coalition” in Iraq, indicating that Omar is being held not as a prisoner of the U.S. military but of the “Multi-National Force-Iraq.” The appeal raises two questions: whether U.S. courts have jurisdiction in that situation to hear a habeas challenge and, if they do, do they have the power to intrude on the coalition decision and on trial in an Iraqi court.

Relying heavily upon the Hirota decision, the government appeal says that it makes clear that U.S. courts “lack jurisdiction to review the detention of individuals held abroad pursuant to international authority, including individuals held by United States forces under American command as part of a multinational force.” It was wrong, the petition contends, to create a criminal conviction exception to the rule of Hirota. By adopting such an exception, the appeal goes on, U.S. courts will have “a perverse incentive” to interfere with foreign governments’ criminal justice systems in order to preserve the U.S. courts’ jurisdiction in habeas cases.

But, the petition adds, on the second issue raised, that even if U.S. courts have some jurisdiction to entertain habeas petitions in this situation, they should not be allowed to use it to issue an injunction that does, in fact, intrude not only on the decisions of a multinational force operating under the United Nations, but also on Iraq’s “sovereign interest in prosecuting serious criminal offenses committed within its own territory.”

After granting review of both petitions, the Court received briefs and then set the consolidated cases for one hour of argument on Tuesday, March 25.

[edit] Merits Briefs

The combined brief of the two citizen-detainees puts much stress on the core argument that the true jailer for them is the U.S. military. “Omar and Munaf are detained by U.S. soldiers. Their immediate custodian is a Lieutenant Colonel in the U.S. Army. Every officer in the chain of command is a soldier in the U.S. Army. Their ultimate custodian, the Secretary of the Army, is present within the district court’s territorial jurisdiction. The U.S. military – not the U.N., not any coalition partner, and not Iraq – has plenary and exclusive authority over their custody.”

On the basic claim of a right to pursue habeas relief, the detainees’ merits brief argues that “only Congress has the power to limit a citizens’ constitutional right to challenge Executive detention. And the Executive cannot by international agreement achieve what the Constitution forbids.” If the mere assertion of “international authority” were sufficient, the brief contends, Executive officials could seize and detain citizens inside the U.S. “without judicial review.”

The brief also offers a sturdy defense of American judges’ power to issue “a standstill injunction,” as was done in Omar’s case. If a federal court has no authority to enter “such routine interim relief, habeas jurisdiction is hollow and Due Process a nullity.” What is being sought from a federal judge in these cases, the brief says, is a review of the challenge to indefinite detention by U.S. officers, and the challenge to transfer to foreign custody “and the consequent high risk of torture.” What it at issue now, it says, is not a final injunction but merely one that “freezes the status quo.” Whatever the District Courts then decide could be reviewed by the Supreme Court.

The government’s merits brief makes a fervent bid for respect for “separation of powers” and respect for what it considers “the basic teaching of Hirota.” Allowing American courts to oversee the military’s handling of detainees in an overseas theater of war, the brief warns, risks serious interference with “the Nation’s conduct of foreign and military affairs.” But, of equal importance, it warns of the prospect for American judicial interference with “the sovereign prerogative of foreign nations to try individuals for the commission of criminal offenses within their own borders.”

On the core dispute over the nature of the entity that is holding the two citizen-detainees, the government brief strenuously defends its notion that this is an international body, not the U.S. military. “Here, the U.N., the United States, and the 26 other nations participating in the MNF-I all view the multinational force as having a distinct identity from the forces of any particular nation.” While U.S.forces are, “to say the least, a vital component” of that coalition, that was true of the forces taking part in the Allied Powers in Japan involved in the prosecution at issue in the Hirota decision.

The citizen-detainees draw the support of eight friend-of-Court filings, several arguing the need for strict adherence to the rights of U.S. citizens to challenge Executive Branch detention. There are no amici filings on the government’s side. Among the detainees’ supporters, there is a studied effort to counter the government’s insistence upon the international character of the coalition in Iraq. A group of “former U.S. diplomats and national security specialists” seeks to draw a clear distinction between “Blue Helmet” international military forces. “Blue Helmet” forces, that brief suggests, are truly international, because they operate under the U.N. or other international organizations with troops voluntarily provided by member countries. The commander of such forces is named by the international body, they note. But “Green Helmet” forces, even if authorized internationally, are under the “unified command: of a national military. “By any measure,” the brief concludes, the Iraqi coalition is a Green Helmet force – limiting, it argues, the impact on international relations that would follow from U.S. courts exercising habeas review to judge detention by Green Helmet U.S. forces.

The National Institute of Military Justice suggests that, contrary to the government brief putting U.S. actions in Iraq under “international authority,” the government “has consistently averred that these forces always act pursuant to the unified command of the United States, and to that authority alone.”

There is a brief from journalists and press organizations, arguing that, “in the fog of war,” journalists on the ground in Iraq and other war zones involving U.S. military forces “face a substantial risk of being detained erroneously in the course of executing their professional responsibilities.” Thus, they contend, “a system of unchecked and unreviewable detention would have devastating consequences for the many journalists and other civilians in Iraq and in future areas of military conflict.”

[edit] Analysis

Three facets of these cases probably will be important in shaping the Court’s reaction to them and its ultimate decision: U.S. citizens are involved, U.S. activity in a war zone is implicated, and a foreign government’s interests may be affected.

The Court has shown, in the 2004 decision in Hamdi v. Rumsfeld (a war on terrorism case), that it is reluctant to deny U.S. citizens who are being detained any meaningful opportunity to challenge their captivity. That would seem to cut in favor of Munaf and Omar; it certainly was a key factor that aided Omar in the Circuit Court.

But, in the past, the Court has shown repeatedly that it is hesitant to step very deeply into military theaters of operation to assert judicial authority. Whatever the nature of the U.S. involvement in Iraq, the Court almost certainly accepts that U.S. forces are indeed operating in a battle zone, and the capture of individuals suspected of being insurgents (or tied to them) might well be seen as a matter of military necessary. That cuts in the government’s favor.

And, in decisions that go all the way back to Chief Justice John Marshall and 1812, the Court has refused to second-guess a sovereign nation’s authority when operating within its own territory, perhaps especially in enforcing its own criminal code. Although Iraq’s government is not directly involved in the case (and the detainees do not challenge its territorial sovereignty or its power to punish for crimes committed there), the Justice Department has striven to link the Munaf and Omar cases with supposed challenges to Iraqi sovereignty. That, too, might cut in the government’s favor.

A question of some complexity that looms large in the case, of course, is whether the Hirota decision is controlling (and therefore must be overruled if the detainees are to win). If the Justices conclude that it is a precedent directly at issue, they probably would then have to confront the nature of the coalition in Iraq – is it the same as the Allied Forces in Japan, or something different? This, too, might require it to second-guess presidential and military judgments, and that might be uncomfortable. They could, perhaps, distinguish it away, as the detainees suggest, and leave it on the books as a somewhat irrelevant relic of the World War II era.

[edit] Oral Argument Recap

[edit] Lyle Denniston

The following is by Lyle Denniston.

When several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced. When Chicago lawyer Joseph Margulies on Tuesday argued the latest case on detainees’ rights, his responses to the Justices’ questions turned a supposedly simple argument into a complex maze, and the Court bluntly told him so. A telltale sign of his woe: Justice John Paul Stevens, whose vote Margulies almost certainly needs, seemed close to bafflement about that side of the argument as the Court heard the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394).

This dispute is about the rights, if any, that U.S. citizens being held captive in Iraq by U.S. military forces there have to go into U.S. courts and challenge their detention and their transfer to Iraqi authorities for what they fear will be torture or abuse as part of criminal prosecution under Iraqi law. Margulies’ basic argument was simple: these are citizens, they are in the custody of U.S. military officials, and, by those facts alone, U.S. courts have jurisdiction to hear their habeas challenges. But, in an apparent need to accommodate what he seemed to think might be holes in his case, his argument wound up with an array of qualifying and complicating shadings. At one point, he even seemed to be conceding points that are being litigated energetically by lawyers who are defending other detainees in U.S. custody: that Congress has validly cut off habeas rights for foreign nationals, and that foreign nationals have no due process rights.

The lack of clarity was particularly telling because Margulies’ adversary, Deputy Solicitor General Gregory G. Garre, made an argument that was simplicity itself. First, Garre argued, the detainees in Iraq are being held not by the U.S., but by an international military coalition, so they are simply outside the reach of U.S. courts. And, second, U.S. courts should not be second-guessing the criminal justice system of another sovereign nation. While the government lawyer here and there seemed to accept that some part of his argument might be weak, he managed to say that those points were not critical to this case, and could be left for another day.

Margulies, who argued second, began with a straightforward discussion of his basic points, and moved quickly to undermine the significance of a World War II-era precedent (Hirota v. MacArthur) on which the government heavily relies. But, after that brief opening, he promptly got into trouble in exchanges with Justice Stevens. It was over the issue — looming larger as the argument moved along — of whether Margulies’ case depended entirely upon the fact that the two prisoners were U.S. citizens. The lawyer said no, but added that he was taking no position on whether habeas jurisdiction extended to foreign nationals. He went on to say, though, that habeas rights were rights of citizenship.

No sooner had that brief exchange ended than Margulies left Stevens confused about whether it made any difference that the two prisoners were being held in a war zone. The lawyer tried to draw a distinction between war zone detention at the moment of capture (no habeas rights, apparently) and later, after months had passed. But in discussing the point, he appeared to leave Stevens unsure where a legal line might be drawn.

The citizenship predicate of his argument came up again in questions by Justice Anthony M. Kennedy and Justice Ruth Bader Ginsburg. Presently, Margulies was defending the authority of the military to turn non-citizen prisoners in Iraq over to Iraqi authorities, under “the laws of war.”

The distinctions Margulies was undertaking to assert led Chief Justice John G. Roberts, Jr., to question how a habeas court could take all of those factors into account. “So,” Roberts asked, “a habeas court here has to look at all those different factors and come to a determination of whether it has jurisdiction? There’s no bright line?” Margulies said no, and, when pressed, said the bright line was one word: “Control. That is what habeas turns on, Your Honor.” Soon, though, Roberts took the questioning back to the citizenship issue, causing Margulies to apologize for perhaps having caused confusion. And Justice Samuel A. Alito, Jr., stepped in to say that he did not understand “what you’re saying about citizenship.” Alito expressed concern about thousands of non-citizen captives in Iraq filing habeas petitions, to which Margulies replied that Congress had cut off foreign nationals’ habeas rights, and added that there were doubts that foreign nationals could claim due process rights.

There was an interlude for confusing exchanges over the military’s detention power in the war zone, and that left Justice David H. Souter expressing open confusion. And the qualifiers Margulies put before the Court in that sequence once again led the Chief Justice to wonder about whether there was a bright line on habeas authority. The argument not long afterward then descended into another vale of confusion over just what relief the detainees were seeking and whether a habeas court could provide it. He suggested that there could be a variety of scenarios, but found no chance to articulate all of what those might be. The Chief Justice indicated he did not understand, and Margulies struggled, without apparent success, to help out, drawing uncertain distinctions between “release” and “transfer.” “I just question,” the Chief Justice eventually told him, “whether habeas is an appropriate remedy…because it’s not concerned with the legality of transfer; it’s concerned with the legality of custody.” And, Roberts added, “The bright line is getting awfully fuzzy, as far as I’m concerned.”

Justice Kennedy soon told Margulies that his argument had become “wildly overbroad” and just wrong. And Justice Stephen G. Breyer chimed in to recall the simple argument with which Margulies had begun, then added: “You’ve been arguing for all sorts of things that seem far broader than that.”

Deputy Solicitor General Garre, in his time at the podium, had significant difficulties with Justices Ginsburg and David H. Souter, who energetically moved to undercut his reliance upon the Hirota ruling as precedent for deciding these new cases. As Souter told the government lawyer: “I don’t think Hirota is a very strong precedent against our at least taking the realistic view of it.” Garre also had some trouble with Justice Breyer over whether the Iraqi military command actually was a U.S. operation rather than an international force, but the government lawyer stuck by his argument, contending that “an international body distinct from the United States is controlling the strings.” He even told Justice Stevens that the government argument would be the same even if the place of detention of the captives was inside the U.S.

Chief Justice Roberts asked Garre at one point whether there were a “limit to your proposition.” What happens, the Chief asked, if it is understood that the individuals are going to be released “in a situation where you know that they won’t receive anything resembling due process and will be subject to abuse?” Garre took a somewhat heroic position: if American citizens go abroad, they “have to take what they get.” But then, relenting a bit, he said that “if this Court thinks that it would be different if there were no system of fairness or process, then it could reserve that question for another case.”

The Deputy Solicitor General also tried to deflect suggestions that situations in Iraq’s prisons were out of control; he said that was a problem in the Interior and Defense Ministries, but not in the criminal justice system.

[edit] Kevin Russell

The following is by Kevin Russell of Howe & Russell.

I wanted to add a few additional thoughts about the Munaf/Omar argument yesterday, specifically with respect to the jurisdictional question. As Lyle notes in his post, counsel for the detainees allowed himself to be whipsawed a bit by some of the Justices, but that reflects in part the great difficulty of the case – all the Justices seem to recognize that important lines have to be drawn in this case, different Justices seemed to indicate very different views about where those lines should be drawn (even among Justices whom one might ordinarily assume share the same basic outlook), and the text of the relevant statute isn’t very helpful in making the kinds of distinctions the Justices seem to feel must be drawn to balance the historic liberty-protecting office of the writ with the important interests in allowing the executive great leeway in a time and place of war.

To briefly reiterate, the detainees in this case are American citizens captured in Iraq and charged with having committed criminal acts while in that country. Both are being held by American troops operating as part of the Multinational Force in Iraq. Omar is being held pending trial in an Iraqi tribunal. At the time he filed his habeas petition, so was Munaf. But he was subsequently convicted and sentenced to death, and then recently his conviction was overturned by an Iraqi appellate court.

Both filed habeas petitions in the District of Columbia. The habeas statute’s jurisdictional provision states, in relevant part, that the writ “shall not extend to a prisoner unless – (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or … (3) He is in custody in violation of the Constitution or laws or treaties of the United States.”

On its face, the statute does not distinguish between citizens and non-citizens, between those detained or held in custody abroad or at home, between detention in the course of an armed conflict or detention during a period of tranquility, or between the various capacities in which the United States might act when it takes a person into its custody. Yet many of the Justices yesterday indicated a strong inclination that habeas jurisdiction ought to take such matters into account, as did the parties.

Greg Garre, arguing for the United States, spent a good portion of his time attempting to defend the Government’s assertion that the habeas statute does not apply at all when the United States is acting in its capacity as part of a multinational force. The argument is, in my view, rather implausible on its face in light of the language of the statute and the purposes of the Great Writ, but it draws some very real support from a World War II-era decision of the Supreme Court, Hirota v. McArthur. But that decision, hastily and opaquely written, seemed unlikely to carry the day, in light of yesterday’s argument. The more liberal Justices vigorously pressed Garre on his reliance on Hirota. Justice Souter suggested it was distinguishable because it involved a non-citizen (Hirota was a Japanese general), and Justice Ginsburg found it important that Hirota had already been convicted by an international war crimes tribunal so that his habeas petition amounted to collateral attack on that tribunal’s decision (whereas in this case, Omar is awaiting trial and Munaf had his conviction vacated). And Justice Breyer was skeptical that it made any real difference that the U.S. soldiers holding the detainees operated as part of a multinational force, given that it was clear that they took their commands from the Pentagon and the President.

None of this is particularly surprising. What was more telling was that the conservative Justices were virtually silent during this part of the argument, none coming to Garre’s assistance on his reading of Hirota. The Chief Justice, in fact, mildly challenged Garre’s attempt to say that it made no difference in Hirota that the habeas petitioner was an alien, noting that his argument relied in part on Justice Douglas’s concurrence rather than the Court’s opinion.

At the same time, there seemed to be no appetite on the Court to give the habeas statute great breadth in the context of U.S. detentions in Iraq. Several Justices noted that the U.S. has detained thousands of Iraqis for common crimes, holding them for a time on behalf of the Iraqi government until they could be taken into Iraqi custody or tried in an Iraqi court. This implied that at least some of the Justices would draw a line between citizens and non-citizens, even though the statute’s text does not.

On the other hand, Justice Stevens seemed to think that there was no basis for that distinction, while preferring to draw another one that also has no express basis in the text – he continually pressed both sides on whether Iraq should be considered a zone of active combat hostilities and whether that should make any difference. When Garre said that the United States was not making that argument (perhaps, among other reasons, because the Administration would prefer not to characterize the progress in stabilizing Iraq in such dismal terms) Justice Stevens told him “That means you haven’t made your strongest argument.” Justice Breyer, however, immediately made clear his view that the situation in Iraq was more akin to an occupation (as in Hirota) than active combat hostilities.

In this context, one can have some sympathy for the detainees’ counsel in his efforts to try to build a coalition for his clients – even among the more liberal Justices there was a multiplicity of views about where the jurisdictional line should be drawn. And when counsel tried to broaden his theory to include the factors the various Justices seemed to deem relevant, the Chief Justice repeatedly challenged his jurisdictional principle as too complicated and indeterminate.

I mentioned that many of the various lines discussed at oral argument seem to have no basis in the text of the habeas statute’s relevant jurisdictional provision. This is a bit over-simplified, in that I think that the concept of “jurisdiction” in habeas cases has expanded to include the broader concept of the power of a habeas court to issue certain kinds of relief in certain kinds of cases. Such considerations might more naturally be considered as going to the merits or remedy, issues upon which the habeas statute has little to say. But I think those issues have, in many respects, been converted into “jurisdictional” issues out of a desire to provide a more immediate, threshold determination of whether the detainee presents the kind of case for which habeas is available. The result, however, is that although one might desire jurisdictional rules to be simple, and the lines they draw to be bright, the jurisdictional determination in this case, and others like it, necessarily becomes complicated and contentious.