Legal Commentary

Over at Opinio Juris, Kevin Heller has news of an immensely important development -- the Iraqi Court of Cassation's reversal of Mohammed Munaf's conviction by the Central Criminal Court of Iraq (the "CCC-I"). Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee -- Omar -- relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

How will the government respond? Will the Supreme Court now just decide Omar, and vacate and remand Munaf for further proceedings not inconsistent therewith?

One thing is for sure: If this all pans out, the reversal of Munaf's conviction serves to reinforce the deep flaws in his trial in the first place, and the reason why federal judicial review of his detention via habeas was--and continues to be--so critical in his case.