Court May Hand Over Convicted American to Iraq

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A federal appeals court hears arguments in the case of a U.S. citizen sentenced to death by an Iraqi court. The United States had planned to hand the man over to Iraq, but a lower federal court issued an order against the transfer. A similar case has been decided in the prisoner's favor by the same appeals circuit.

MICHELE NORRIS, host:

You're listening to ALL THINGS CONSIDERED from NPR News.

In Iraq right now American soldiers are holding a U.S. citizen who's been sentenced to death by an Iraqi judge. The man wants an American court to stop his transfer to Iraqi custody. Today, three judges on the federal appeals court in Washington heard arguments over whether they have the right to intervene.

NPR's Ari Shapiro reports.

ARI SHAPIRO: Two years ago, Mohammad Munaf, went to Iraq with some Romanian journalists to work as a translator and guide. Insurgents took them all hostage. When they were released, Munaf confessed to helping the kidnappers. An Iraqi judge ordered him to be executed.

Munaf now says he only confessed because he was tortured, and his lawyers say his trial was a sham. They want U.S. courts to stop American troops from handing Munaf over to the Iraqis for execution. The question is whether American courts have that jurisdiction. One week ago today, the legal landscape in this case changed dramatically. That's when three judges on the D.C. Circuit Appeals Court decided the case very similar to this one.

Shawqi Omar is a U.S. citizen in Iraqi custody, just like Munaf. The major difference is that Munaf was tried and sentenced in an Iraqi court. Omar has never stood trial. The D.C. Circuit ruled that American judges can hear Omar's case. The question now is whether Munaf should get the same court access as Omar. Government attorney Gregory Garr said the fact that Munaf was convicted makes this a completely different case.

He told the court, Americans have no right to go abroad, commit criminal offenses, and then complain when they're called to answer for those crimes. Judge Raymond Randolph said if your argument is valid, then Omar was wrongly decided. We think Omar was wrongly decided, said Garr. But we're bound by it, said Judge Randolph. Garr said the government plans to ask the full D.C. Circuit to rehear Omar and Munaf.

Judge David Sentelle replied, that's all well and good, but for now, Attorney Garr interjected, the difference is the conviction. Munaf's lawyer, Joe Margulies, argued that Munaf's conviction makes no difference. He said the court's decision in Omar forces the judges to decide this case in his client's favor. Judge Brett Cavanaugh proposed a hypothetical scenario. He said, what if Japan had overcrowded prisons, and asked the U.S. to help?

If the U.S. military base in Japan housed some Japanese prisoners, and one of them happened to be a U.S. citizen, could he access American courts. Wouldn't that interfere with America's ability to help out an ally? Margulies said the prisoner in that situation could challenge his detention, Cavanaugh asked: don't we have a similar relationship with Iraq, where we're assisting in the detention of people who violated Iraqi law? Margulies said in essence, read the Omar decision.

The fact that we're helping Iraqis doesn't mean U.S. courts lose their power. After the arguments, Margolis said, he thinks the implications of last week's ruling are clear.

Attorney JOE MARGULIES (Mohammed Munaf's Lawyer): Omar stands for the proposition that a U.S. citizen held by the United States in Iraq can challenge the lawfulness of his detention, and the lawfulness of his threatened transfer to Iraqi custody. The same questions are before the court in Munaf. So every bit as much so that Mr. Omar can challenge it, Mr. Munaf can challenge it.

SHAPIRO: The government lawyers would not speak on tape after the arguments. The judges in this case are widely considered to be more conservative than the panel that decided Omar. Whatever their decision, it seems likely that the case will eventually end up before the entire D.C. Circuit.

Ari Shapiro, NPR News, Washington.

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