Analysis: Can U.S. courts reach overseas?
on Nov 11, 2006 at 9:29 am
The case of Mohammad Munaf, a U.S. citizen who faces a death sentence imposed by a court in Iraq, has drawn the U.S. Supreme Court and the D.C. Circuit Court into a major new test of the global impact of the Great Writ — the habeas writ. The Munaf case and a similar one that does not involve a death sentence have stirred up a basic inquiry into the power of U.S. courts to weigh the role of U.S. military officials as part of the alliance of forces carrying on the war in Iraq. Along the way, the cases have become echoes of a legal battle waged in the aftermath of World War II — and, in particular, the Supreme Court’s brief precedent in Hirota v. MacArthur in 1948.
An earlier post on the Munaf case as it reached the Supreme Court, in a plea to Chief Justice John G. Roberts, Jr., can be found here. (Mohammed v. Harvey, application 06A471). .So far, Roberts has taken no action on the applicatioin to delay Munaf’s transfer to Iraqi custody. Because of developments on Friday, it may not be necessary for Roberts — or the full Court — to act at least for the time being. The D.C.Circuit on Friday postponed any transfer of Munaf to the Iraqis while the full Circuit Court considers whether to conduct en banc review of his status. (A government reply on the question of en banc review is due at the Circuit Court by noon Monday.)
Munaf’s lawyer told Roberts on Friday that he has no objection to delay of any Supreme Court action “to give the Court of Appeals the opportunity to control its own docket and ensure judicial consistency” between Munaf’s case and the similar case of Omar v. Harvey (Circuit docket 06-5126).
A Circuit Court panel held a hearing Sept. 11 on the case of Shawqi Ahmad Omar, a U.S. citizen also being held in Iraq awaiting criminal charges in an Iraqi court. Omar’s transfer to Iraqi custody has been blocked by a federal judge, in a decision that directly conflicts with another federal judge’s finding in Munaf’s case that U.S. courts have no jurisdiction over habeas claims in such cases. The two cases thus raise fundamental issues similar to those the Supreme Court has considered recently on the role of American courts in weighing the legal fate of war-on-terrorism captives being held by the U.S. military at Guantanamo Bay, Cuba.
In the background of the two cases is the Supreme Court’s three-paragraph ruling, issued in the Hirota case on December 20, 1948, finding that U.S. courts had no authority to hear a habeas case filed by high officials of the World War II government of Japan, challenging an international military tribunal that had convicted them of war crimes against humanity.
In the new cases now unfolding for U.S. citizens in Iraqi, the federal government is relying primarily upon the Hirota decision. Its basic argument is that the two are being held, not by the U.S. military, but by the coalition of allied military forices — the Multinational Force–Iraq, and that bars U.S. court jurisdiction under the Hirota ruling, as well as under separation-of-powers principles.
In a ruling last February in the Omar case (the one now on appeal to the D.C. Circuit by the federal government), U.S. District Judge Richard M. Urbina barred Omar’s transfer to Iraqi custody in order to allow the U.S. courts to make a fuller inquiry into his challenge to detention. Omar, like Munaf, is being held at Camp Cropper, a military prison at the airport in Baghdad. Both contend that they are actually being held under the authority of U.S. military officials, because they control the prison and effectively control all coalition operations.
Judge Urbina found that his court had jurisdiction to hear Omar’s habeas challenge, at least to give Omar’s lawyers a chance to present their claim for release from detention. Urbina rejected the controlling impact of the Hirota decision, finding that changes in U.S. habeas law since then — including recent Supreme Court rulings on the Guantanamo detainees’ rights to pursue habeas claims — made the Hirota decision inapplicable. The judge found “significant evolution of the Supreme Court’s habeas jurisprudence….The Supreme Court has recently further clarified the scope of the traditional habeas to respond to new situations, illuminating this court’s present path.” There is no precedent “directly on point,” he concluded.
In Mohammad Munaf’s case, however, U.S. District Judge Royce C. Lamberth uled on Oct. 19 that Munaf is not in the custody of U.S. officials, who could be challenged under habeas law, but was being held by the coalition forces. Lamberth relied in signficant part upon the Hirota prececent. That judge read recent Supreme Court precedents differently, saying “the one constant in all these cases is that the petitioners were in the custody of the United States alone, in its capacity as the United States, and not by any multinational force.” Lamberth conceded that he was “at odds” with Judge Urbina’s decision. He dismissed Urbina’s reliance upon “some offhand remarks by a few government officials” about the status of U.S. military control over Munaf.
Munaf’s lawyers, in a new filing with Chief Justice Roberts on Friday, sought to bolster the claim that he (and, by extension, Omar, too) are actually being held under the authority of the U.S. military. They recite recent congressional testimony by the U.S. commander of the multi-national force, Gen. George W. Casey, Jr., that “my chain of command is through the secretary of defense and the President.” According to the testimony, he was asked in Senate hearings whether there would be any limits on the U.S. command’s authority due to the international nature of that coalition force, and he replied “None at all.”
It also quotes Casey as having testified that military commanders of other countries in the coalition report to him, and he reports to Gen. John Abizaid, the head of the U.S. Central Command in charge of all military operations in Iraq, Thus, Munaf’s lawyers contended, “the Executive cannot escape its legal duties to its citizens by acting in concert with its allies, and cannot replace the writ of habeas corpus with a U.N. [United Nations] resolution.”
“This Court,” they told Roberts, “should not allow Mr. Munaf to be executed before these issues are fully explored and resolved.”
