Team Infidel
Forum Spin Doctor
New York Times
March 26, 2008
Pg. 16
By Linda Greenhouse
WASHINGTON — After spending the last several years considering the rights of noncitizens held by the United States military, the Supreme Court on Tuesday turned its attention to the legal status of American citizens held by the military in Iraq for transfer to the Iraqis on criminal charges.
As in the cases from Guantánamo Bay, the question argued on Tuesday was one of federal court jurisdiction: whether the courts can hear challenges brought by two men, both United States citizens, to the validity of their detention and proposed transfer.
The two, Shawqi Ahmad Omar and Mohammad Munaf, are both civilians and are being held at Camp Cropper, an Army-run detention center near the Baghdad airport.
The question proved complex, as suggested by the fact that two different panels of the federal appeals court here had reached opposite conclusions in reviewing petitions for habeas corpus filed by the two men. One panel refused to intervene on behalf of Mr. Munaf. Although his conviction and death sentence on kidnapping charges was overturned several weeks ago by the Central Criminal Court of Iraq, he may face further charges.
The other panel upheld an injunction preventing Mr. Omar’s transfer to the Iraqi authorities. He was captured by the United States military at his home in Baghdad and was determined to be a “security internee” who harbored insurgent and jihadist fighters at his home. The Bush administration appealed that ruling to the Supreme Court, which consolidated the two cases, Geren v. Omar, No. 07-394, and Munaf v. Geren, No. 06-1666, for a single argument.
The Bush administration’s position is that the federal courts lack jurisdiction over the men according to the reasoning of a post-World War II decision that rejected habeas corpus petitions from Japanese prisoners who had been convicted of war crimes by an international tribunal. The prisoners were being held in Japan under the authority of the Allied Supreme Commander there, Gen. Douglas MacArthur.
Arguing for the administration, Gregory G. Garre, a deputy solicitor general, said the 1948 case, Hirota v. MacArthur, was directly applicable.
That assertion met resistance from several justices. “You had Japanese soldiers in Hirota, and you’ve got American citizens here,” Justice David H. Souter told Mr. Garre.
It was not the question of citizenship that mattered, Mr. Garre replied, but rather the fact that the Japanese were in the custody of a multinational force. The administration’s position is that the two men are in the same position in Iraq, in that the United States military is technically part of the Multinational Force-Iraq. “An international body distinct from the United States is controlling the strings,” Mr. Garre said.
Justice Souter persisted. Applied to this case, he said, a presidential agreement to place forces under international control “in effect eliminates habeas jurisdiction over an American citizen.” He added: “It’s a little scary.”
And Justice Stephen G. Breyer disputed the administration’s premise. No matter how the American military presence in Iraq was labeled, he objected, “the chain of command ultimately runs to the president.”
Several justices pressed Mr. Garre for the limits of the administration’s position. Suppose, Chief Justice John G. Roberts Jr. said, “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,” as briefs on behalf of the two men have warned. “What happens in that case?” the chief justice asked.
Mr. Garre replied: “I think we would maintain that American citizens, when they go abroad, they have to take what they get.”
Several justices appeared to find that response alarming, although their reaction was not necessarily predictive of how the case will eventually be decided.
The argument on behalf of the two men by Joseph Margulies, of the MacArthur Justice Center at the Northwestern University School of Law, prompted questioning that was at least as skeptical. His position that the men’s American citizenship was an important factor, but not necessarily a conclusive one in defining their rights, appeared to confuse even those justices who, like Justice John Paul Stevens, were his natural allies.
The lawyer’s discomfiture on the citizenship question may have reflected an unspoken subtext to the argument: that the court is simultaneously considering, in a separate case, the rights to habeas corpus by the noncitizen detainees at Guantánamo Bay. Mr. Margulies has represented men in that group as well, and may not have wanted to pursue an argument that could undermine their chances.
March 26, 2008
Pg. 16
By Linda Greenhouse
WASHINGTON — After spending the last several years considering the rights of noncitizens held by the United States military, the Supreme Court on Tuesday turned its attention to the legal status of American citizens held by the military in Iraq for transfer to the Iraqis on criminal charges.
As in the cases from Guantánamo Bay, the question argued on Tuesday was one of federal court jurisdiction: whether the courts can hear challenges brought by two men, both United States citizens, to the validity of their detention and proposed transfer.
The two, Shawqi Ahmad Omar and Mohammad Munaf, are both civilians and are being held at Camp Cropper, an Army-run detention center near the Baghdad airport.
The question proved complex, as suggested by the fact that two different panels of the federal appeals court here had reached opposite conclusions in reviewing petitions for habeas corpus filed by the two men. One panel refused to intervene on behalf of Mr. Munaf. Although his conviction and death sentence on kidnapping charges was overturned several weeks ago by the Central Criminal Court of Iraq, he may face further charges.
The other panel upheld an injunction preventing Mr. Omar’s transfer to the Iraqi authorities. He was captured by the United States military at his home in Baghdad and was determined to be a “security internee” who harbored insurgent and jihadist fighters at his home. The Bush administration appealed that ruling to the Supreme Court, which consolidated the two cases, Geren v. Omar, No. 07-394, and Munaf v. Geren, No. 06-1666, for a single argument.
The Bush administration’s position is that the federal courts lack jurisdiction over the men according to the reasoning of a post-World War II decision that rejected habeas corpus petitions from Japanese prisoners who had been convicted of war crimes by an international tribunal. The prisoners were being held in Japan under the authority of the Allied Supreme Commander there, Gen. Douglas MacArthur.
Arguing for the administration, Gregory G. Garre, a deputy solicitor general, said the 1948 case, Hirota v. MacArthur, was directly applicable.
That assertion met resistance from several justices. “You had Japanese soldiers in Hirota, and you’ve got American citizens here,” Justice David H. Souter told Mr. Garre.
It was not the question of citizenship that mattered, Mr. Garre replied, but rather the fact that the Japanese were in the custody of a multinational force. The administration’s position is that the two men are in the same position in Iraq, in that the United States military is technically part of the Multinational Force-Iraq. “An international body distinct from the United States is controlling the strings,” Mr. Garre said.
Justice Souter persisted. Applied to this case, he said, a presidential agreement to place forces under international control “in effect eliminates habeas jurisdiction over an American citizen.” He added: “It’s a little scary.”
And Justice Stephen G. Breyer disputed the administration’s premise. No matter how the American military presence in Iraq was labeled, he objected, “the chain of command ultimately runs to the president.”
Several justices pressed Mr. Garre for the limits of the administration’s position. Suppose, Chief Justice John G. Roberts Jr. said, “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,” as briefs on behalf of the two men have warned. “What happens in that case?” the chief justice asked.
Mr. Garre replied: “I think we would maintain that American citizens, when they go abroad, they have to take what they get.”
Several justices appeared to find that response alarming, although their reaction was not necessarily predictive of how the case will eventually be decided.
The argument on behalf of the two men by Joseph Margulies, of the MacArthur Justice Center at the Northwestern University School of Law, prompted questioning that was at least as skeptical. His position that the men’s American citizenship was an important factor, but not necessarily a conclusive one in defining their rights, appeared to confuse even those justices who, like Justice John Paul Stevens, were his natural allies.
The lawyer’s discomfiture on the citizenship question may have reflected an unspoken subtext to the argument: that the court is simultaneously considering, in a separate case, the rights to habeas corpus by the noncitizen detainees at Guantánamo Bay. Mr. Margulies has represented men in that group as well, and may not have wanted to pursue an argument that could undermine their chances.