Posted Tuesday, March 25, 2008, at 5:13 AM
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. ...