High Court Hears Cases of U.S. Citizens Held in Iraq

The U.S. Supreme Court on Tuesday hears arguments on whether American citizens held by U.S. forces in Iraq may be turned over to Iraqi courts without recourse in U.S. courts. Two Americans are being held by the military in Iraq. They are accused of aiding terrorists.

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The Supreme Court today takes up the cases of two American citizens in Iraq. Both men have been held for years by the U.S. military, which wants to turn them over to the Iraqis. The men are claiming that they cannot be transferred to the Iraqi court system without first having the right to protest their detention in the U.S. courts.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The first of the cases involves a man named Shawqi Omar, who was born in Kuwait, came to the U.S. as a 17-year-old student, served in the National Guard, married an American in South Dakota, and 22 years ago became an American citizen.

After Saddam Hussein's fall, he went to Iraq seeking work in the reconstruction, and in 2004, was arrested by U.S. forces, who've held him as an enemy combatant ever since, contending that he was harboring Iraqi insurgents. In 2005, his American wife went to court, using the procedure known as habeas corpus, which was written into the Constitution to serve as a check on the government's power to arbitrarily put someone in prison.

In 2006, when Omar's U.S. lawyers learned he was going to be transferred to the Iraqi courts to face unspecified charges, they went to the federal court here in Washington seeking to stop the transfer. A federal judge temporarily barred Omar's transfer to the Iraqi court system, an appellate court panel agreed, and the Bush administration then appealed to the U.S. Supreme Court.

The second case involves another naturalized U.S. citizen. Mohammad Munaf, whose immigration path took him from Iraq, first to Romania as a teenager, and then to the U.S. 18 years ago, where he subsequently became a citizen. In 2005, Munaf went to Baghdad as a paid translator for a group of Romanian journalists. Soon after their arrival, they were kidnapped, held for two months and apparently freed for ransom.

The U.S. took custody of Munaf and claims that he confessed on camera to being a conspirator in the kidnapping. Although he has continued to be held by the U.S. military, he was tried and sentenced to death by the Iraqi courts. And his lawyers, like Omar's, sought to prevent his transfer to Iraqi custody by filing a writ of habeas corpus in the U.S. courts.

In Munaf's case, however, a different panel of the federal appeals court here in Washington said the U.S. courts have no jurisdiction, and Munaf's lawyers appealed to the Supreme Court. A funny thing happened, though, on the way to today's Supreme Court argument.

Last month, the Iraqi appeals court set aside Munaf's conviction, saying there's no evidence of a confession and that the other evidence against Munaf that's cited by the government in its Supreme Court brief does not exist, either. Munaf, however, remains in the custody of U.S. forces in Iraq.

That's the status quo today, as the Bush administration appears in the U.S. Supreme Court, contending that no U.S. court has any power under the Constitution or the laws of the United States to hear petitions brought by American citizens before they're turned over to Iraq or other countries that claim jurisdiction for crimes committed on their sovereign territory.

David Rifkin, a Bush administration ally, makes the administration's argument that it's not the United States that's holding these men, it's the multinational forces in Iraq. But, he says, even if it were just American forces holding these men…

Mr. DAVID RIFKIN: It still wouldn't make any difference, because American forces are not holding these two individuals because of infractions they committed against American forces, applying U.S. law. They're holding them, they're really warehousing them, as an accommodation to the Iraqi government.

Professor AZIZ HUQ (Law, NYU; Co-counsel for Omar and Munaf): The government's argument here is dancing angels on pinheads.

TOTENBERG: Aziz Huq is a law professor at NYU and co-counsel for Omar and Munaf. He knows that both men are American citizens being held by American forces.

Prof. HUQ: When you pick a United States citizen up overseas, when you accuse them of very serious offenses related to terrorism, when you hold them for protracted periods of time, the citizen has a right to come into court and say, no. You're wrong. Here's the actual facts.

TOTENBERG: Citizenship is key, says Huq, noting that the Supreme Court ruled four years ago in the case of an American-born Saudi picked up on the battlefield in Afghanistan, that a U.S. citizen cannot be detained without some due process of law.

Prof. HUQ: The Supreme Court said that there are no blank checks. There's no black holes into which the government can take a U.S. citizen and simply put them where the government's detention decision would be beyond the power of any court to review. What the government is, in effect, saying in this case is that while, yes, there is such a blank check provided we claim that we are going to transfer this person over to some other government.

TOTENBERG: But David Rifkin counters that citizenship is irrelevant here.

Mr. RIFKIN: A sovereign country has a full and absolute right to prosecute individuals of whatever citizenship for criminal infractions on their soil. These people traveled to Iraq, committed criminal offenses on Iraqi soil. The Iraqi government has jurisdiction. Your citizenship is not a shield.

TOTENBERG: Rifkin contends that under international law, the Iraqis have a right as a sovereign power to the transfer of these detainees. He knows that Omar and Munaf are not being extradited from the United States, and that even if they were, they would be entitled to relatively few legal protections.

Mr. RIFKIN: Just because things happen in foreign countries that don't meet our exacting standards of, you know, the glove does not fit you got to acquit, does not mean that we're entitled to trample upon the sovereignty and judicial system of other countries.

TOTENBERG: Indeed, he observes, the U.S. routinely extradites citizens to countries like Russia, Egypt, Malaysia - countries that have little or no protections for the accused.

Aziz Huq replies that Omar's lawyers have not been advised of any Iraqi charges against their client. And as for Munaf, his conviction came after a U.S. Coast Guard lieutenant assured the Iraqi judge that the Romanian government wanted him prosecuted, and that the U.S. government would produce a letter from the Romanian government memorializing that understanding - a letter that, if it exists, was never produced, just as the alleged confession was never produced.

Again, Professor Huq.

Prof. HUQ: There's no question that, yes, there are often agreements between the United States and the other country that entail and allow a transfer. But before that transfer happens, the citizen has a right to come into court and challenge the legality of it.

TOTENBERG: David Rifkin asserts that once a civilian U.S. citizen in U.S. custody in a foreign country is accused of a crime in that country, the U.S. must, under international law, turn that individual over for trial, unless there are agreements to the contrary. The U.S. courts have no role to play, he says, and if they did, that would be a diplomatic disaster.

Mr. RIFKIN: They decide, if the Supreme Court decides it's the wrong way, this would create total anarchy.

TOTENBERG: But lawyers for the American detainees in this case counter that Great Britain's highest court ruled that under international law, British citizens are entitled to a review by British courts before they're turned over for prosecution in Iraq.

Now it's the U.S. Supreme Court's turn to make a judgment for American citizens.

Nina Totenberg, NPR News, Washington.

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