Justice For Iraq




 
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Justice For Iraq
 
March 29th, 2008  
Team Infidel
 
 

Topic: Justice For Iraq


Justice For Iraq
Wall Street Journal
March 29, 2008
Pg. 8
By David B. Rivkin Jr. and Lee A. Casey
This week, the Supreme Court heard arguments concerning whether U.S. officials in Iraq can turn over American nationals, held in that country by Coalition Forces, to the Iraqi government for trial and punishment.
The men involved, Shawqi Ahmad Omar (a dual U.S./Iraqi national) and Mohammad Munaf (a dual U.S./Jordanian national), traveled voluntarily to Iraq and are accused of criminal offenses there kidnapping for ransom (Mr. Munaf) and assisting Iraqi insurgents, also in connection with a kidnapping for ransom scheme (Mr. Omar). Both men have demanded intervention by the U.S. federal courts through habeas corpus petitions and seek judicial orders forbidding their transfer to Iraqi officials and other forms of cooperation between the U.S. and Iraqi authorities. This judicial relief would manifest disdain for Iraqi sovereignty and violate settled law.
Every country has the legal right to punish criminal offenses that occur on its territory. This is a fundamental attribute of sovereignty, and is fully recognized by the U.N. Charter. When Americans go overseas, they are subject to this rule as are foreign nationals who visit the U.S. Diplomats enjoy internationally recognized immunities from local jurisdiction, and military personnel are generally covered by status-of-forces agreements which regulate application the host country's laws.
These exceptions to the general rule are, in fact, broader under Iraqi law exempting both non-Iraqi military personnel and certain civilian security professionals.
But neither Mr. Omar nor Mr. Munaf enjoy any of these immunities. They are private citizens who claim U.S. government protection, and access to the federal courts, based upon their detention in Coalition facilities maintained, in part at least, by American officials. The Supreme Court has made clear that Americans overseas even when held formally in U.S. custody can lawfully be transferred to local authorities for criminal trial. The leading case is Wilson v. Girard (1957), in which the Supreme Court rejected an American soldier's efforts to avoid transfer to Japanese officials to face criminal charges for recklessly causing the death of a Japanese woman.
A great deal is at stake here. Iraqis are proud and, despite all of the American blood and treasure spent in Iraq, many resent the legal immunity that has been accorded to U.S. personnel and contractors. They resent even more when this immunity is broadened to include individuals who arrive as private travelers and then engage in criminal conduct on Iraqi soil.
Add in such episodes as a December 2006 escape from the Green Zone by the former Iraqi Electricity Minister Ayham al Samarrai (who was awaiting sentencing on corruption charges and is now rumored to be living in the U.S.), and the repeated snubbing of Iraqi government delegations at various international gatherings, and Iraqis see a concerted campaign to diminish their sovereignty.
The government has sought to convince the Court that it does not have jurisdiction even to consider the habeas petitions filed by Messrs. Omar and Munaf, arguing that they are held under the Coalition's, and not American, authority. A number of Justices posed questions this week evincing skepticism about this distinction. But they also appeared skeptical of the petitioners' claims that they would be entitled to more than simple release from custody the normal relief granted in a successful habeas corpus action and that the U.S. should be required to protect them from Iraqi government officials.
Messrs. Omar and Munaf argue that the Iraqi judicial system is fundamentally flawed and that they are likely to be tortured if recaptured by local officials. But the only alternative to release would require the U.S. to grant them "asylum" from Iraqi justice on Iraqi soil or to spirit them out of the country. Both courses of action would clearly violate Iraq's sovereignty and would risk a confrontation between the U.S. and the Iraqi government.
In addition, such orders would exceed the proper, constitutional bounds of judicial authority by directing the president how to manage American-Iraqi relations at a time and place where the U.S. military operates alongside the Iraqi forces in an ongoing armed conflict.
The choice before the Court is clear. It should respect international law and recognize Iraq's sovereign right to try and punish criminal defendants within its own territory. The U.S. has chosen not to seek (as a diplomatic matter) special treatment for these individuals because of their American citizenship, a decision properly within the executive branch's discretion. Even if the Court concludes that it has jurisdiction to consider the habeas petitions, it should reject them and let Messrs. Munaf and Omar have their day in the Iraqi courts.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.
 


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