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Whose Prisoners Are They, Anyway?The Americans you've never heard of who are being held in Iraq.

By Justin Florence and David FontanaPosted Friday, Dec. 14, 2007, at 12:01 PM ET

Last Friday, the Supreme Court voted to take up the appeals of two American citizens being held by the United States in Iraq. So far, these cases are little known, but they may end up being crucial to the Supreme Court's interventions in the war on terror.

Both Mohammad Munaf and Shawqi Ahmad Omar are American citizens. Both were captured and detained in Iraq by American military forces—Omar for his alleged general involvement in insurgent activities, and Munaf for his alleged role in kidnapping foreign journalists. Munaf has already been convicted by an Iraqi court and sentenced to death. Omar has not yet faced criminal charges and has been detained for several years without significant access to counsel. Both are awaiting transfer to Iraqi authorities. Both brought petitions in American courts challenging their detentions. Both are being detained not by the United States alone, but by the multinational force in Iraq, and given this custody, the Bush administration has argued that no American court can address their petitions.

The judges who have so far considered these cases—Omar v. Harvey and Munaf v. Geren—have split over how to resolve them. But they all agreed that the issues at stake, and the implications, are enormous. First, the cases require the Supreme Court to decide whether there's a salient legal difference between the rights of people who are held by the United States, and the rights of those held by the United States when it acts abroad in conjunction with coalition partners, as increasingly occurs. If the Supreme Court decides that Omar and Munaf cannot have their day in an American court, it would mean that the government could skirt judicial review by convincing other countries to help hold war on terror detainees—even U.S. citizens—through an international force.

If the court tries to avoid this scenario by concluding that U.S. courts must consider petitions from everyone being detained by the United States in conjunction with multinational forces, it could create an explosion of lawsuits in American courts from the thousands of noncitizen detainees in Iraq. The Supreme Court may be inclined to avoid this scenario by ruling that Omar and Munaf, as American citizens, have a special right to our courts. But while this outcome might intuitively appeal to the justices, not a single lower court judge drew this distinction—in fact, the three D.C. Circuit judges who decided Munaf explicitly rejected this approach—and scholars question whether the Constitution would permit such a distinction.

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When the Supreme Court has decided other terrorism cases in the past few years, Congress has often stepped in to constrain or alter the import of the justices' rulings. But in the Iraqi cases, what the Supreme Court says will likely be the last word. Neither Congress nor President Bush have shown much interest in passing legislation addressing the constitutional questions regarding what happens to those being detained Iraq—not even American citizens.

In addition, these cases could affect the military commissions that the Bush administration is attempting to use to try the handful of detainees at Guantanamo who have been charged with a crime, like Salim Ahmed Hamdan. The Guantanamo cases that the court heard last week concern the constitutional rights of the hundreds of detainees who have not been tried. The Iraq cases, by contrast, will require the court to address both what happens to people who are just being detained, and what happens to those who have been tried for particular offenses. The D.C. Circuit held that an actual conviction by an Iraqi court—even one lacking fair procedures—was enough to close the doors of American courthouses to somebody challenging his detention. If the Supreme Court agrees with that view, that would suggest that a conviction by the kind of highly flawed military commission being used to try Hamdan could be enough to prevent a detainee there from getting to an American court as well.

Meanwhile, the Supreme Court will be acting on a relatively blank judicial slate. The justices will likely go back to an old ruling of the high court, Hirota v. McArthur. Issued in 1948, the opinion is embarrassingly incoherent. Without really resolving the issue, and in only three paragraphs, the court considered whether Japanese citizens being detained by a multinational tribunal in postwar Japan had the right to bring a habeas petition in an American court. All that the court did in Hirota is say that the "circumstances" of that case meant that American courts could not hear the case, without explaining which "circumstances" were relevant. The case also has an odd procedural history that adds to its uncertain status.

When the justices sit down to figure out how to handle Omar's and Munaf's claims, then, they may as well be starting from scratch. Which means that what they decide to say could be all the more significant.

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Justin Florence is a fellow at the Georgetown Center on National Security and the Law. David Fontana is an associate professor at George Washington University Law School.
COMMENTS

Remarks from the Fray:

I am constantly amazed that these judicial cases are considered to be gray areas, or raising "serious questions" about the laws themselves. The only questions they raise are whether or not this adminsitration is going to give up its policy of ensuring that detentions are as lengthy, secretive, unrepresentative, and borderline illegal as possible.

These guys were Americans. They went to Iraq, and fought against US soldiers. This is a crime against the Iraqi state, and they should remain tried by Iraqi courts and incarcerated wherever and howerver the legal bodies in Iraq determine it to be so.

Iraq may not be a de-facto sovereign state, but it is, and should be treated as such de-jure. The fact that these guys (or anyone else, regardless of nationality) comes into Iraq and shoots at American soldiers does not make them guilty of crimes against America. Why? Because as an occupying force within a state with it's own legal mechanisms, we are acting as an enforcer of martial law - legally we operate there with the permission of the Iraqi government (and a sort-of-legal UN mandate). We are fighting under our own flag, but we are doing so to enforce the laws (and stability) of the country of Iraq.

Now, we COULD consider them guilty of waging war against the American army, and arrest them under US jurisdiction as POW's. However, this has not been the administration's policy. To my knowledge, there are zero POW's from the war on terror - only enemy combatants, who have a different legal status than POW's.

That's fine, if you do the legal thing and charge and try insurgents with the crime of insurgency. This has happened often enough, but it still seems like we would prefer to keep them untried, in legal limbo between POW and insurgent under the legal black-hole moniker of enemy combatant.

To say that there is a "gray area" here is to buy into the administration's newly invented extra-legal policy. Where there are gray areas, there is no law, and no judicial process. The fact remains that there are, in fact, international and Iraqi laws against terrorism, insurgency, and conspiracy against the state. It doesn't matter what you're nationality is, and we should stop pretending that someone who attacks a country out-of-uniform is a headscratcher for lawyers.

--jwschmidt

(To reply, click here.)

(12/16)

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