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Sunday, March 02, 2008

Did Omar and Munaf Just Become the Same Case?

Over at Opinio Juris, Kevin Heller has news of an immensely important development -- the Iraqi Court of Cassation's reversal of Mohammed Munaf's conviction by the Central Criminal Court of Iraq (the "CCC-I"). Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee -- Omar -- relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

How will the government respond? Will the Supreme Court now just decide Omar, and vacate and remand Munaf for further proceedings not inconsistent therewith?

One thing is for sure: If this all pans out, the reversal of Munaf's conviction serves to reinforce the deep flaws in his trial in the first place, and the reason why federal judicial review of his detention via habeas was--and continues to be--so critical in his case.

Posted by Steve Vladeck on March 2, 2008 at 09:00 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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» Vladeck on the Munaf from Opinio Juris
At Prawfsblawg today, my friend -- and national-security expert -- Steve Vladeck discusses what the reversal of Mohammed Munaf's conviction means for his Supreme Court case. Here is a snippet:Munaf's habeas petition is one of two brough... [Read More]

Tracked on Mar 3, 2008 2:08:28 AM

» Vladeck on Omar and Munaf from Discourse.net
At PrawfBlawg (like the blog, hate the name), Steve Vladeck has a very insightful post on two cases pending before the Supreme Court: Did Omar and Munaf Just Become the Same Case? Steve being a friend, I know hell forgive me for my quoting it in... [Read More]

Tracked on Mar 3, 2008 9:00:54 AM


Since now two people have referred to the Convention Against Torture without quoting the relevant text, Article 3 says "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Since the prisoners are in Iraq and would be turned over to the sovereign government on whose soil they were captured and are being held, this cannot possibly be a case of expelling, deporting, or extraditing anyone.

Returning to the original question of the post, Munaf's case has never been about anything except crime for profit. Thus he was never anything other than a criminal held pending criminal prosecution. Hense, if a Habeas hearing asks "what is the legal basis for his detention," the only answer is the Iraqi government's pending criminal charges. If the Supreme Court does not simply toss out the Habeas petition, it will be interesting to see how a Habeas hearing proceeds when the legal basis for detention is a criminal case in another sovereign country which is outside of the US Court's jurisdiction.

Omar, however, was picked up in a raid on an al Qaeda safe house containing weapons, bomb making equipment, and bombs. Because such weapons and bombs were being used against US forces, he was first judged by a military tribunal to be an enemy combatant not qualified for status under the Geneva Convention. Because the same bombs were being used against Iraqi civilians, he could also and independently be criminally charged by the Iraqi Justice Ministry for murder and terrorism. Therefore, in an Omar Habeas case, the response would be both that he can be held by the military as an enemy combatant and that he is pending criminal charges in the Iraqi civilian criminal court. The US Courts have jurisdiction over the military detention as an enemy combatant, but not over the Iraqi criminal charges. So in this sense, the Omar case is strongest for the courts because they actually have at least one question they can actually decide before turning both Omar and Munaf over to the CCC-I.

Posted by: Howard Gilbert | Mar 5, 2008 1:21:19 PM

Steve, I agree with you that federal courts have jurisdiction to entertain both Omar and Munaf’s habeas petitions, whether or not they are being held pursuant to an Iraqi criminal conviction. I also tend to agree with Judge Randolph that although the federal courts have the ability to entertain Munaf’s petition, he was not entitled to it (before his conviction was overturned). But, that is not the focus of my comment.
You state that Article 3 of the Torture Convention forbids the U.S. from turning over either Munaf or Omar to Iraqi custody for there is a credible fear that they would be subjected to torture in Iraq’s custody. I understand how this might be a possibility, seeing that both Omar and Munaf are Sunni. But, to borrow a quote from the government’s brief in Omar, “Even in the extradition context, ‘under what is called the ‘rule of non-inquiry’…courts in this country refrain from examining the penal systems of requesting nations, leaving to the Secretary of State determinations of whether the defendant is likely to be treated humanely.’ Lopez-Smith v. Hood, 121 F.3d 1322.” While it has been established that the rule of non-inquiry does not apply in the context of whether the prisoner will be tortured, is it not still true that it is up to the Secretary of State to decide if a country poses a torture risk or not? As far as I am aware, and I could be wrong on this, but Secretary Rice has not declared Iraq to be a country that poses such a risk of torture to constitute barring any transfer by the U.S. of a prisoner to their custody. In light of this, to rule otherwise and state that the Torture Convention would forbid the transfer of anyone to Iraqi custody would require the Court to go through a detailed analysis of a foreign country, an analysis that I can not see them undertaking, one that is best left up to the experts at the State Dept. Is it not up to the executive to decide such foreign policy issues, not the judiciary? I am not stating that I think that an extradition is a political question that the judiciary has no ability to scrutinize. Rather, the decision of which countries to pose a torture threat is a decision best left up to the executive and those decisions would constitute a political question. If the State Dept had declared Iraq to pose such a threat, then I would agree that federal courts have the ability to scrutinize Omar and Munaf’s transfer, but absent that finding, I think the invocation of the Torture Convention is inappropriate
It also seems unrealistic to me, considering the immense co-operation going on between Iraqi and American forces, to say that no American can ever transfer anyone to Iraqi custody. That would frustrate the necessary American support that is being provided for most all of Iraqi’s civil institutions.

Posted by: Thurston Webb | Mar 5, 2008 10:25:02 AM

Howard -- You say it's outrageous arrogance; I say it is the essential power of the federal courts to constrain illegal conduct by the federal government. I imagine neither of us is going to convince the other.

Posted by: Steve Vladeck | Mar 3, 2008 5:20:00 PM

Over 250 prisons in the US are run by companies. Suppose they did not have citizenship requirements for staff, and some company contracted out guard duty to what turned out to be a unit of MPs from the Iraqi army. Then suppose that a Federal court issued a warrant to take custody of a prisoner who happened to be an Iraqi citizen, and an Iraqi court issued an injunction to the prison staff blocking transfer of that person to Federal authorities. Do you suppose that the injunction would stop the US Marshals for even a millisecond? That is essentially the case we have here. Because the prison is guarded by a US military unit, US courts imagine that they have a right to block the Iraqi government from taking custody of a prisoner on Iraqi soil. This is the usual outrageous arrogance the world has come to expect from America.

Posted by: Howard Gilbert | Mar 3, 2008 2:40:31 PM

Howard -- I think you're conflating different arguments. At the core of these cases is the argument that these detainees have a right not to be transferred to the custody of a country they credibly fear will torture them. You suggest that there is no difference between transferring them to Iraqi custody and letting them walk out of Camp Cropper. I disagree -- the former is barred by international law, as implemented by federal statute; the latter isn't.

If the mere fact that they are in an "Iraqi" jail (that's run by the U.S. military) is what's doing the work here, what's to stop the government from detaining anyone in such conditions?

Posted by: Steve Vladeck | Mar 3, 2008 12:38:48 PM

"Munaf appealed to the D.C. Circuit, which eventually granted an injunction against the transfer." (http://docket.medill.northwestern.edu/archives/004650.php). I believe the injunction remains in force pending the appeal to the Supreme Court.

Lets see if I have this straight. First, you get an injunction that prevents Omar from being brought before the Iraqi court to face criminal charges. Then you complain that he is being held "without charges" because the injunction prevents him from being charged.

Besides, the only alternative to holding Omar (without charges) is to release him to the Iraqis. Even in the DC Circuit decision favorable to Omar, the option noted that its only effect was to delay the inevitable. Eventually the Iraqis have to get Omar, but litigation may hold that off for a while.

We have Iraqi residents who are being held in an Iraqi jail on Iraqi criminal charges. It is not clear that these prisoners are, in any meaningful sense, "in US military custody," just because the Iraqis have asked the US military to guard the jail. Nor can we return to the abuses of the 19th Century where Europeans in China had extraterritoriality because of their citizenship.

Posted by: Howard Gilbert | Mar 3, 2008 12:28:51 PM

Howard -- First, I think you're confusing the two cases. There is no injunction pending in Munaf's case, since he lost on jurisdiction in both the D.C. district court and the D.C. Circuit.

Second, you say "[w]hatever is going on here, it is not 'executive detention'. The US courts are blocking the normal operation of the Iraqi criminal courts. The executive, the prison guards, are simply minor characters stuck in the middle of a battle over juristiction [sic] between two court systems."

I respectfully disagree. Without the conviction, we now have the case of two U.S. citizens held _without charges_ by the U.S. military. True, in one of the cases (Omar), the U.S. government claims that the Iraqi government wishes to pursue criminal charges. But Article 3 of the Torture Convention (which we _have_ executed) expressly forbids the U.S. from turning anyone over to another country if they credibly fear being tortured in that country's custody. It may be that, ultimately, Omar can't establish a claim for relief. But the notion that the U.S. federal courts don't have jurisdiction to reach the merits of that claim when a U.S. citizen is held in U.S. custody abroad strikes me as incredibly dangerous. Otherwise, what, besides political sensibilities, is to stop the U.S. government from sending _anyone_ to Camp Cropper and, on your account, outside the reach of the federal courts?

Posted by: Steve Vladeck | Mar 3, 2008 10:02:48 AM

Since Iraq regained sovereignty in June, 2004 there has been an informal division of responsibility between the Iraqi police, Iraqi military, and US military. The most important prisoners have been held at Camp Cropper under US military guards. The US courts have used this arrangement to claim a right to interfere with the Iraqi internal criminal justice system when US citizens are charged with crimes. US guards have been enjoined from transferring the prisoners to Iraqi police so they can be brought before Iraqi courts to answer for crimes committed in Iraq, while the US Courts consider the merits of Habeas petitions.

Whatever is going on here, it is not "executive detention". The US courts are blocking the normal operation of the Iraqi criminal courts. The executive, the prison guards, are simply minor characters stuck in the middle of a battle over juristiction between two court systems.

The reversal of Munaf's conviction caused by the apparent loss of the records and evidence from the original trial certainly says something about Iraqi record keeping (and maybe the kind of corruption that caused Iraq to ask the US military to guard one of their prisons in the first place). It certainly says nothing about the original trial. An alternate take is that the decision by the Iraqi appeals court to overturn the decision shows that the interference in Iraqi sovereignty by the US courts was unwarranted.

Interestingly, the thing that could now be keeping Munaf in jail is the US injunction. The prisoner may have to appear in court in order to have the charges dismissed. The US injunction now prevents the US from transferring Munaf to the Iraqi courts for any reason. So he may have to sit in prison until the injunction is lifted. Once transferred to Iraqi court custody, however, nothing prevents the Iraqis from retrying him, so his lawyers may not be in any rush.

Posted by: Howard Gilbert | Mar 3, 2008 8:18:55 AM

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