Legal News

Two Americans, Arrested in Iraq, Fight Deportation Back to Mid-East

By Dan Slater

The fates of two men who each hold U.S. and Jordanian citizenship — Mohammad Munaf and Shawqi Omar — could depend on how the Supreme Court resolves this question: Are the U.S. troops in Iraq serving in an “international army” that “is legally distinct from the U.S. military”?

If the answer is yes, both men will be handed over to Iraq to face trial there on terrorism and kidnapping-related charges. And, say their lawyers, a group from NYU’s Brennan Center for Justice, the men, both Sunni Muslims, could, if deported, face torture by the Shiite-dominated government in Baghdad. Here’s the story from WSJ.

According to the report, criminal suspects facing foreign extradition are normally entitled to federal court hearings before they are deported. But the Bush administration says Munaf and Omar have no such rights because they are held, not by the U.S. government, but by a United Nations-mandated force exempt from American court jurisdiction. For its argument, the Bush administration relies on a post-invasion Security Council Resolution on the reconstruction of Iraq, as well as a 1948 SCOTUS case, called Hirota v. MacArthur, in which the Court rejected a petition from leaders of Imperial Japan who’d been convicted by the International Military Tribunal for the Far East.

But the lawyers for Munaf and Omar say it’s a “formalistic fiction” to claim that the U.S. military in Iraq is a U.N. force. Lower courts have split on the question, with one panel of the U.S. Court of Appeals for the District of Columbia siding with the government against Munaf, and a different panel ruling against the government and for Omar. (Click here for the mens’ SCOTUS brief.)

David Kaye, a State Department lawyer during the first years of the Iraq war, told the WSJ that the resolution on which the Bush administration relies, which authorizes “a multinational force” to help stabilize Iraq, was developed at the urging of smaller countries serving under U.S. command. “It was purely as cover for others, not for us,” he says. “For us to go back and say it displaced our normal control and command authority is just wrong.”

Full post as published by Law Blog - WSJ.com on March 21, 2008 (boomark / email).