At Supreme Court: Americans accused in Iraq want U.S. judge

Key issue: Do citizens held by the US military in a foreign war have constitutional protections?

from the March 25, 2008 edition

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Then, in February, an Iraqi appeals court threw out Munaf's conviction and death sentence. It ordered more investigation.

In the meantime, Munaf has remained in US military custody.

Both a federal judge and a federal appeals court panel have ruled against Munaf. They ruled that since US troops are part of a multinational force authorized by the United Nations, Munaf's detention overseas in Iraq is not within the jurisdiction of the US courts.

The second case involves Mr. Omar, a citizen of both the US and Jordan. Omar moved with his wife and six children to Baghdad, seeking work in the reconstruction of Iraq.

In 2004, US forces raided Omar's Baghdad home. According to the government's brief in the case, they discovered an Iraqi "insurgent" and four Jordanian "jihadist fighters" staying with the Omars. The brief says the men admitted to a plan in which Omar would use his knowledge of English to lure foreigners to his home where the "jihadists" would kidnap them and demand ransom. Some of the men later recanted statements implicating Omar, the government's brief says.

Omar has been held in US military custody without charge. He had been denied access to his wife, the US consul, and a lawyer.

In December 2005, Mrs. Omar filed a habeas petition asking a federal judge in Washington to rule on the legality of her husband's continued detention. The petition also asked the judge to prevent the US military from transferring Omar to Iraqi jurisdiction for a trial until a US court could rule on the lawfulness of his ongoing detention.

Unlike the Munaf case, the federal judge in Omar's case ruled that US courts have jurisdiction to examine such cases. In addition, the judge ordered the US government not to transfer Omar to Iraqi custody until the pending issues were resolved. A federal appeals court panel upheld the order.

Lawyers for Munaf and Omar are urging the Supreme Court to find that US courts have jurisdiction to hear petitions filed by Americans held by the US military overseas.

The US government seeks a "blank check" over the rights of the nation's citizens in its actions in Iraq, writes Joseph Margulies, a law professor at Northwestern University, in his brief on behalf of Omar and Munaf.

"Omar and Munaf are US citizens who have been detained for years by US officers at a US prison," Mr. Margulies writes. "Having done no wrong, they seek only what is guaranteed to all American citizens ...: the opportunity to test the lawfulness of their continued confinement in federal court."

The solicitor general's office counters that US forces are functioning in Iraq under a UN mandate and that US courts do not have jurisdiction to police such international efforts.

"Because individuals held pursuant to international authority are not in custody under ... the authority of the United States, the writ of habeas corpus does not extend to them," writes Solicitor General Paul Clement. "Omar and Munaf are held overseas pursuant to international authority by United States forces acting as part of a multinational force," he says.

The government also argues that since the two men traveled voluntarily to Iraq and allegedly committed crimes in Iraq, they are within the jurisdiction of Iraq's criminal-justice system. Since they were detained within Iraq, turning them over to Iraqi authorities does not trigger the extra layer of legal protections that exist during an extradition, Clement says.

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