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.

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.

The two US citizens, Mohammad Munaf and Ahmed Omar, are accused of involvement in plots to kidnap and ransom foreigners in Iraq. Both say they are innocent.

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.

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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