Iraq Detention Case Heads To High Court

Iraq Detention Case Heads To High Court
March 23rd, 2008  
Team Infidel

Topic: Iraq Detention Case Heads To High Court

Iraq Detention Case Heads To High Court
Washington Post
March 23, 2008
Pg. 5
Jailed American Citizens Say They Have Right to Access U.S. Legal System
By Josh White and Robert Barnes, Washington Post Staff Writers
In a jail guarded by U.S. military police on the outskirts of Baghdad, at a base where U.S. interrogators do the questioning, Iraqi American Mohammad Munaf and Jordanian American Shawqi Ahmad Omar are stuck in a peculiar legal limbo.
Munaf and Omar say their jailers at Camp Cropper are under U.S. Army command, and therefore they are entitled to challenge their detention under U.S. law. But the Bush administration has argued in court that the prison belongs to the international military coalition called Multi-National Force-Iraq and that Munaf and Omar are, therefore, beyond the reach of U.S. courts.
The dispute is scheduled to be taken up by the Supreme Court on Tuesday, and the outcome could have broad implications for the rights of U.S. citizens held on international battlefields. Until the court rules, the extent of U.S. constitutional protections overseas remains unclear.
"Habeas corpus, the power of the courts to review detention by the executive, has existed in some form for over seven hundred years," American Bar Association President William H. Neukom told the court in a brief. "It remains, in the context of military detentions of this country's citizens, a vital protection of the rule of law."
The largely parallel legal claims of the two men are complicated by their controversial personal sagas. Munaf was jailed in Camp Cropper as the result of a strange kidnapping incident involving three Romanian journalists he was escorting through Baghdad. He and the journalists were taken to a tiny concrete dungeon beneath a farmhouse on the city's outskirts, where they were held with seven other hostages, bound and blindfolded for nearly two months.
After Munaf and the journalists were released, U.S. and Romanian authorities accused him of setting up the kidnapping. The U.S. government contends in court papers that Munaf "admitted on camera, in writing, and in front of the Iraqi investigative court" that he was an accomplice.
The case was sent to the Iraqi Central Criminal Court, where Munaf was convicted and sentenced to death in what his attorneys have called a sham trial. U.S. authorities wanted to transfer Munaf to Iraqi officials for the sentence to be carried out, but three weeks ago an Iraqi appeals court overturned the conviction. An Iraqi court is investigating how to proceed in the case while Munaf remains at Camp Cropper.
Munaf's attorneys challenged the transfer on grounds that the U.S. government would be violating the constitutional rights of a U.S. citizen and that the transfer could have meant Munaf's imminent death. Although he allegedly confessed to American and Romanian officials, his attorneys say that confession was coerced under threat of abuse, and Munaf told the Iraqi court that he is completely innocent, according to court records.
Omar, who has dual U.S.-Jordanian citizenship, was arrested in Baghdad in October 2004 on allegations that he was aiding Abu Musab al-Zarqawi's terrorist network. U.S. authorities wanted to transfer him to Iraqi courts for trial, but a U.S. district court blocked the move.
Both men claimed that their U.S. citizenship and the circumstances of their detention by U.S. forces gave them the right to take their challenges to federal court.
Separate panels of the U.S. Court of Appeals for the District of Columbia Circuit examined their claims in light of a 1948 Supreme Court ruling that said federal courts have no power to review decisions of multinational forces. Each panel came to a different conclusion.
Omar was allowed to pursue his claim in federal court because he had not yet faced trial overseas, while Munaf's conviction took him out of the reach of U.S. courts.
The government appealed the Omar case, Munaf's lawyers appealed his case, and the Supreme Court has combined the two in the case that will be heard Tuesday.
Multi-National Force-Iraq operates under the unified command of American military officers, but a British officer is its second in command. The government, in briefs filed in the combined cases, said the force is "legally distinct" from the U.S. military and, therefore, is not subject to U.S. courts.
"The United States courts lack jurisdiction to review habeas petitions filed on behalf of individuals held by a multinational force abroad pursuant to international authority," Solicitor General Paul D. Clement wrote in a brief to the court. ". . . These cases present two distinct questions of exceptional importance to the separation of powers, the Nation's conduct of foreign and military affairs, and the sovereign prerogative of foreign nations to try individuals for the commission of criminal offenses within their own borders."
The administration told the justices that the men are asking for an "unprecedented intrusion" into the executive branch's conduct of the war and the sovereignty of foreign courts, and warned of the consequences.
"Other nations would inevitably take offense if American courts were to assume the authority to review the determinations of international bodies in which United States forces or personnel may participate abroad, and if the United States courts assume such jurisdiction, the courts of other nations could do so as well," Clement wrote.
No amicus briefs were filed supporting the administration's position, while a number of civil liberties groups registered their support for Omar and Munaf. They said in court filings that the government's plea would undermine rights that the Supreme Court ruled in 2004, in Hamdi v. Rumsfeld, are guaranteed for U.S. citizens held by the military. They accused the government of trying to hide behind a "multinational-forces fig leaf," in the words of a joint brief by the Constitution Project and the Rutherford Institute.
"The U.S. military -- not the U.N., not any coalition partner, and not Iraq -- has plenary and exclusive authority over their custody," the lawyers for Munaf and Omar wrote in briefs to the court. "They are, therefore, held under or by color of the authority of the United States."
The two sides differ on the importance of the 1948 Supreme Court ruling. Clement said the current case is made easy by Hirota v. MacArthur, which held that "the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences" of World War II military tribunals in Japan.
Attorneys for Omar and Munaf said the government's reliance on that case is mistaken, not least because those challenging their convictions in Hirota were Japanese citizens living in Japan. "The case is irrelevant to applications filed in the district court by U.S. citizens making a direct challenge to U.S. detention by U.S. soldiers at a U.S. prison," the attorneys told the court. "Omar and Munaf do not seek to 'overrule' Hirota; it is the government that seeks to extend Hirota beyond its original sphere."
U.S. courts have previously ruled that the existence of international coalitions can preclude some cases from surviving in American courts. A judge in Alexandria ruled in 2006 that a civil fraud suit against Custer Battles LLC, a U.S. security contractor in Iraq, could not go forward because the defunct Coalition Provisional Authority (CPA), which hired it, was not a U.S. entity.
Although "the CPA was principally controlled and funded by the U.S., this degree of control did not rise to the level of exclusive control required to qualify as an instrumentality of the U.S. government," U.S. District Judge T.S. Ellis III wrote. "In fact, the evidence clearly establishes that it was created through and governed by international consent."
The Justice Department wrote a brief in 2005 supporting the plaintiffs in the Custer Battles case, arguing that the company should be subject to U.S. anti-fraud laws because of the major role that American officials played in the CPA. Now, the government argues that Multi-National Force-Iraq is not a U.S. entity subject to U.S. court interference.

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