Legal Commentary

I'm not nearly as clever (or tenured) as Sandy is, and so I can only borrow most of the title of his post from Sunday, but I had a similar reaction to a terribly disturbing editorial in this morning's Washington Post, "Imprisoned in Iraq," about the Omar and Munaf cases set to be argued before the Supreme Court tomorrow.

In short, the Post's editorial page "see[s] no basis for the court to grant the detainees access to U.S. courts. It is a well-established tenet of international law that no country has the right or power to interfere with the legal system of another sovereign country." That's certainly true... If only that were the issue.

As I (and others) have suggested before, this is not the classic case of U.S. citizens who commit crimes overseas and are tried before foreign courts. First, it's not at all clear that the Iraqi government even wants one of the two detainees (Omar). Second, both detainees are in American (or at least effectively American) custody, unless one really thinks the presence of a few Bulgarian soldiers makes the MNF-I a "true" multinational force. Third, there is a non-frivolous allegation that the two citizens fear torture and other forms of mistreatment in Iraqi custody. Any of these facts, on their own, should be enough to suggest that these are hardly typical cases, and that the "well-established" tenet to which the Post refers is entirely beside the point. And if custody really is the touchstone of the habeas inquiry, at bottom, the defects in the petitioners' claims run to the merits, not to jurisdiction.

Marty has his own (ever cogent) thoughts here. I've written about these cases before in some detail as well. But it boggles the mind that the Post would write such a callously myopic editorial. Toward the end, the piece notes that:

While the United States must allow the Iraqi legal system to work, it has a strong interest in seeing that Mr. Munaf and Mr. Omar are treated fairly -- inside and outside of an Iraqi court. The U.S. government acknowledges in court documents that "reports of torture remain a concern" in some sectors of the Iraqi government. If the two men are at some time turned over directly to the Iraqi government, the United States must use its considerable diplomatic muscle to ensure that its citizens are not subjected to such treatment.

I had thought we were long past the point where we took the sufficiency of a "diplomatic remedy" seriously where the rights of U.S. citizens were concerned. Apparently not.