Sorting out citizen-detainee’s rights
on Apr 9, 2007 at 12:03 pm
The pace of legal maneuvers over the power of U.S. courts to hear pleas by U.S. citizens held overseas by the U.S. military is accelerating, first in the D.C. Circuit Court and perhaps shortly in the Supreme Court as well. Two cases are at the center of these developments In one of those, the citizen was allowed to go forward in a U.S. District Court with a challenge to being turned over to Iraqi authorities for trial, in the other the citizen was denied any form of court review of a challenge to being transferred to face execution in Iraq following conviction in an Iraqi court.
Although the ultimate quest of the citizens is not to be transferred to Iraqi custody, their initial challenge is to detention by the U.S. military overseas — an issue not governed by military law, as would be the case with servicemembers held in detention for crimes under the military code. The government contends that the detainees are being held by a multinational coalition of forces, not the U.S. military, but that is a central issue in dispute bearing on who presently has custody.
Two citizen-detainee rulings came out of the D.C. Circuit Court, with the Bush Administration losing the first one on Feb. 9 (Omar v. Harvey, Circuit docket 06-5126) but winning the second one (Munaf v. Geren, Circuit docket 06-5324) last Friday. One or both, lawyers involved indicate, will wind up in the Supreme Court, and probably quite soon. (This blog has discussed these developments as well as earlier action by the Supreme Court in the Munaf case — most recently in this post last Friday.)
Last month, the Administration asked the Circuiit Court to hold en banc review of its defeat in the Omar decision. (The petition for further review can be found here.) The Circuit Court, showing some interest in that maneuver, last Wednesday asked for a response from attorneys for the citizen-detainee, Shawqi Ahmad Omar. (Under court rules, no response to such a petition may be filed unless the court seeks one.) The response is due by April 19.
In the case of the other citizen-detainee, Mohammad Munaf, attorneys involved in the case indicated that they are leaning toward taking the case directly to the Supreme Court without seeking en banc Circuit review, although they have not yet decided finally on the point. Jonathan Hafetz, an atorney for the Brennan Center for Justice, which represents Munaf, noted in a statement that the Circuit Court even while barring court review of Munaf’s habeas petition had said that “the decision presents issues of pressing national importance that must ultimately be resolved by the U.S. Supreme Court.”
The Brennan Center is also involved in the Omar case.
When one or both of the cases reach the Supreme Court, the appeals will center on the question of whether U.S. courts have any authority to hear the challenges of American citizens being held by the U.S. military outside U.S. territory — challenges to their detention or to their transfer to a foreign government for criminal prosecution or punishment.
Appeals thus will focus primarily upon the meaning of a 1948 ruling by the Court in Hirota v. MacArthur., limiting the overseas reach of U.S. courts.
(Thanks to Peter Goldberger, appellate attorney in Ardmore, PA, for a suggestion that made the legal issue in the post clearer.)
