U.S. judges can't pull Americans from Iraqi courts

Thursday's Supreme Court ruling involved men accused of kidnapping-for-ransom schemes.

from the June 13, 2008 edition

Page 2 of 2

Page 1 | 2

According to the government's brief in the case, "Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists."

But the brief also notes that Munaf recanted his confession at trial, saying the statements had been coerced. Nonetheless, Munaf and five codefendants were convicted and sentenced to "execution by hanging until death."

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

Both a federal judge and a federal appeals court panel 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.

In its ruling on Thursday, the Supreme Court rejected the argument that the federal court lacked jurisdiction because American forces in Iraq serve as part of a multinational force. The court said it is clear that US forces in Iraq answer to the president.

But the victory was of little benefit to Munaf, who nonetheless was found to be outside the jurisdiction of the federal courts because of his status as a criminal defendant in Iraq.

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

In 2004, US forces raided Omar's Baghdad home and discovered an Iraqi "insurgent" and four Jordanian "jihadist fighters." The men are said to have admitted to a plan in which Omar and the jihadists would kidnap foreigners and demand ransom. Some of the men later recanted statements implicating Omar.

Omar was taken into US military custody and held without charge. He was denied access to his wife, the US consul, and a lawyer.

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

In reversing the decision in the Omar case, the high court said the district court abused its discretion in ruling for Omar.

On the issue of torture, Roberts said that allegations that an American citizen might be subject to abusive treatment once turned over for prosecution by a foreign government is a "matter of serious concern."

But he said such concerns are to be addressed by the political branches, not the judiciary. He noted that the State Department assesses foreign legal systems. "The judiciary is not suited to second-guess such determinations – determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government's ability to speak with one voice," he wrote.

"In contrast, the political branches are well situated to consider sensitive foreign policy issues," he said, "such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is."

1 | Page 2