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?
When an American commits a crime overseas he or she is subject to arrest and prosecution under the laws of that foreign country.Skip to next paragraph
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But what happens when the country is Iraq and the detaining authority is the US military? Can the US government turn one of its own citizens over to Iraqi authorities for harsh interrogations, criminal prosecution, and a potential death sentence?
That's the circumstance that arose in two different cases of Americans detained by the US military in Iraq. American judges are in disagreement about how to treat such cases. On Tuesday, the issue arrives at the US Supreme Court.
The primary question is whether United States citizens being held by the US military in a foreign war zone are entitled to constitutional protections – including the right to have a neutral American judge examine the legality of his or her detention.
Government lawyers say the two men are merely trying to use the US courts to avoid having to answer in Iraq for their alleged crimes.
Lawyers for the two disagree. "The issue is not: Do you let these guys go or not?" said Aziz Huq of the Brennan Center for Justice at New York University during a recent briefing with reporters. "The issue is, can they come into court and say, 'You've got [the facts] wrong.' "
Mr. Huq added, "This is about whether the courthouse doors are open."
Mr. Munaf is a dual US-Iraqi citizen. He is suspected of plotting with Iraqi gunmen who kidnapped and ransomed three Romanian journalists in March 2005. Munaf had been hired by the journalists as a translator and guide.
When the journalists were released, Munaf was seized by the US military and held without charge in an American detention camp in Baghdad. Lawyers working on Munaf's behalf challenged the legality of his open-ended detention by filing a habeas corpus petition with a federal judge in Washington.
The US responded to those legal efforts by referring Munaf's case to Iraqi authorities.
Munaf's lawyers complained that as a Sunni Muslim, their client would face a risk of torture at the hands of Iraqi investigators working to obtain a full confession.
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, he 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.
In the meantime, Munaf has remained in US military custody.