Legal Commentary

Deborah Pearlstein asks about the Munaf/Omar case being argued on Tuesday: "On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?"

Well, Deborah, if there's one principle the Bush Administration cares even more about than dissing international law, even more than making mincemeat of treaty obligations, even more than preserving unilateral executive prerogatives, it's making sure there is no judicial oversight over the President's conduct of war. (My favorite bit from John Yoo's most recent book is when he recounts (page 142) that in the weeks after September 11th, the Administration formed an inter-agency task force to study the issues related to detention and trial of al Qaeda members, and although there were many novel and contentious questions confronting the group, "[t]he one thing we all agreed on was that any detention facility should be located outside the United States" -- because then the courts would (they thought) lack jurisdiction over the detention facility. In other words, "the first thing we do, let's kill all the judges.")

In this case, the cleanest way to exclude the courts is to contend that -- surprise! -- it's not really the U.S. in Iraq who is detaining the U.S. citizens. What? No, it's not the U.S., acting pursuant to domestic law, but instead it's "the Multinational Force-Iraq" (MNF-I, for short). Why indulge such a fiction? Because the Administration hopes to take shelter in a cryptic 1948 decision, Hirota v. MacArthur, in which the Court held that federal courts lacked jurisdiction to review habeas petitions filed by certain Japanese nationals who were held by United States forces, acting as part of the Allied Powers. If Munaf and Omar were being held by the U.S. military, there's little doubt that they would have a right to petition for habeas; but according to the Administration, Hirota stands for the proposition that if the custodians are a multinational force of which U.S. armed forces are only one part, the habeas statute magically disappears, and the petitioners are flat out of luck.

That's why the Administration is at pains to argue that the U.S. is acting in Iraq, not on its own, but only as patr of a multinational force under the authority of . . . none other than the United Nations!: "The MNF-I operates in Iraq at the request of the Iraqi government and under United Nations (U.N.) Security Council resolutions authorizing it 'to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to' the resolutions. Pursuant to its U.N. mandate, the MNF-I operates under the 'unified command' of United States military officers, but it is legally distinct from the United States military, has its own insignia, and includes high-ranking officers from other nations (for example, the second in command, Lt. Gen. William Rollo, is a British officer)."

I don't think the Court would conclude that Hirota controls this case, even if the custodians of these detainees were part of a truly multinational force. (The 1948 case can be distinguished much more easily than, say, the Miller Second Amendment precedent, e.g., as involving the detention of non-citizens and, most importantly, as involving a collateral attack on the judgments of international tribunals -- neither of which is the case here.) But the fact of the matter is that it is, in fact, the United States military that is in control of these detainees. As the habeas petitioners stressed in their brief, U.S. military officials are the immediate and ultimate custodians of the detainees, and every person responsible for the detention of Omar and Munaf are Ameican officers, answerable only to other U.S. officers in our military's chain of command. One amicus even pointed out that the particular component of the MNF-I, Task Force, is exclusively American.

Not so!, says the SG: In a footnote in his reply brief, he represents, for the first time, and without any citation, that "Bulgarian soldiers are serving within that task force."

So, let's recap: If one's goal is to make sure that the military can detain anyone indefinitely without the prospect of any judicial review, first, urge the courts themselves to stay their hand, so that the detainees will come to believe that no judge will come to their aid and that all hope, and due process, is lost -- the better to interrogate them. When that does work, the second option is to move them to a law-free, court-free zone, such as GTMO. But when even that won't work, either because the courts will have none of it or, as here, because the detainees are U.S. citizens, just impress a couple of Bulgarians to help out with the detention! And voila -- no more habeas!

Hmm . . . I wonder what the Court will think of that argument?