Convictions: Slate's blog on legal issues

A Soldier's Take on Munaf

Like Marty, Diane, and Deborah,  I, too, am excited about today's oral argument in Munaf and Omar.  Not just because I think this case raises thorny issues, but also because this case deals with a subject I have some personal experience with.

I served in Iraq from 2005-06 as an adviser to the Iraqi police in Baqubah. My team also worked closely with the provincial courts and jails as part of an effort to improve the larger rule-of-law system. Every time we visited a police station, we also looked at its detention cell or jail. We lived on the police headquarters compound for the first three months of our tour, literally living above the provincial jail; we later moved down the street and spent at least two days inside the jail. Attorneys for Munaf and Omar now argue that it would be unlawful to transfer their clients from U.S. (or Multi-National Forces) custody to Iraqi custody because of the conditions in the Iraqi jails and prisons—and the likelihood of torture there. I believe these arguments because I saw the overcrowding, squalid conditions, lack of due process, and evidence of torture in these facilities with my own eyes.  

Second, I soldiered under the Byzantine organization known as Multi-National Forces-Iraq. I served pretty far down in the command structure on an adviser team; between me and MNF-I lay the brigade, division, and corps layers of command. However, in our work with the Rule of Law system and Iraqi security forces, we frequently interacted with senior officials and leaders from MNF-I. Notwithstanding the legal arguments from the government's counsel, there is no question in my mind that this is a U.S.-led, U.S.-centric, and U.S.-run organization in every way—right down to the American comfort food they serve in the chow halls next to the Republican Palace in Baghdad that MNF-I uses for a headquarters. I understand the government's argument with respect to the U.N. Security Council mandate and other points, but I think that argument flies in the face of reality.  

Why should reality matter?

I think the court is particularly sensitive to what I'll call the "ground truth" in these detention cases. I think the justices remember well how they heard oral argument in Rasul and Hamdi in April 2004—and even asked a question about torture, eliciting no response from the government—only to have CBS air the first images from Abu Ghraib that night on television. I also think the court is aware of how the torture issue has developed since then. My sense is that the court will consider the realities of Iraq in their deliberation and draw out some of those realities today at oral argument. 

I look forward to reading Dahlia's "Supreme Court Dispatch" tonight. ...

Curious About Munaf

No answers to questions by Eric and Deborah, but more questions about Munaf: There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.

Petitioning for a writ of habeas are Mohammad Munaf and Shawqi Ahmad Omar, both U.S. citizens who also hold citizenship in a second country and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether

United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.

Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of nine justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The court in Hirota deemed the IMTFE a "military tribunal" established by U.S. Gen. Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)

But here's what is curious: In Munaf the U.S. government contends that U.S. troops that are detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,' " as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)

The claim suggests a break in the U.S. chain of command—a cession of U.S. sovereignty—that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just two examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja Jr., then president of the U.N. Security Council: "[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel. ... The existing framework governing these matters is sufficient for these purposes." Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, deputy director for operations, J-3, Joint Staff, said with regard to the MNF:

But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.

Though the clash in claims may not stop the government as a matter of law, I am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.

(Cross-posted at IntLawGrrls blog.)