TRI in the News


Court to Hear Dispute on Civilians Caught in Iraq



March 25, 2008

From USA Today
By Joan Biskupic
Original article available here.


WASHINGTON -- The Supreme Court hears arguments Tuesday in a case that could significantly affect the legal rights of American civilians captured in Iraq.
The dispute tests whether U.S. citizens taken into custody and held by the U.S. military have access to federal courts to challenge their detention. It was brought by two Arab-Americans in custody in Baghdad, one of whom an Iraqi court sentenced to death for an alleged kidnapping.

Normally, U.S. citizens have a right to challenge their detention before a judge. The U.S. government says the men should be denied a hearing because they are officially held by the Multi-National Force-Iraq, a United Nations-mandated force led by the United States but joined by many countries.

Numerous outside groups have entered the case to argue that if the Bush administration position prevails, it would weaken the long-standing right of citizens to challenge their imprisonment before a federal judge. The Associated Press, the Committee to Protect Journalists and other news organizations submitted a "friend of the court" brief saying reporters are among those who could be held without hearings.

"Reporters and war correspondents ... face a substantial risk of being detained erroneously in the course of executing their professional responsibilities," says the brief signed by five media groups. "U.S. troops have sometimes confused journalists with Iraqi insurgents. U.S. forces have detained over a dozen journalists for months at a time without any charges." Among the examples in the brief is AP photographer Bilal Hussein, captured in 2006 by U.S. troops and held for nearly two years.

Since post-9/11 cases began coming to the high court, an overriding question has involved detainees' access to U.S. judges. The Bush administration has tried to put the federal courts off-limits. The Supreme Court has resisted. It ruled in the 2004 case of Hamdi v. Rumsfeld, for example, that citizens have rights to contest their detention in U.S. courts even when they are captured abroad and designated "enemy combatants."

Another dispute pending for this term tests whether foreign terrorist suspects held at the U.S. naval base in Guantanamo Bay, Cuba, have a right to challenge their detention in U.S. court.

In the new paired cases, Mohammad Munaf, a dual U.S.-Iraqi citizen, was serving as a translator to Romanian journalists in Iraq in 2005 when the group was kidnapped and held for two months. After they were freed, the Multi-National Force-Iraq accused Munaf of participating in the kidnapping for profit. An Iraqi court found him guilty and sentenced him to death. An appeals court threw out the conviction in February, and Munaf is awaiting other proceedings.

The second detainee, American-Jordanian citizen Shawqi Omar, evaded trial by an Iraqi court because a U.S. judge blocked the multinational force from transferring him to Iraqi custody. The force captured Omar in 2004 during a raid of his Baghdad home that targeted people allegedly linked to al-Qaeda. The raid allegedly turned up weapons linked to kidnapping plots.

U.S. Solicitor General Paul Clement argues that the men lack a right to a hearing before a U.S. judge because the multinational force is legally distinct from the U.S. government. He notes that it includes officers from other nations, including a British officer who is second in command. Clement says allowing the detainees to get to U.S. courts would interfere with the United States' international commitments.

Joseph Margulies, a Northwestern law professor representing Munaf and Omar, urges the court to rule that the U.S. military cannot evade due process of law when it joins in international operations.