Monday, March 24, 2008

Curious 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 (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d 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 9 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. General 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 curious: in Munaf the U.S. government contends that U.S. troops that're 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 2 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 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 estop the government as a matter of law, 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 Slate' s brand-new Convictions blog, as explained below.)

1 comment:

HowardGilbert said...

There are over 250 prisons run by private companies in the US, but nobody believes that a company has the authority to lock people up. There is a distinction between the chain of command of the jailers (the company) and the legal authority under which the prison operates (a State and its courts).

Munaf has been charged, convicted, and may now be retried under the authority of the sovereign government of Iraq and its Central Criminal Courts (CCCI). While any case is before the courts, then by an agreement between Iraq and the MNF-I, he is held in the one prison, Camp Cropper, located inside the security cordon that surrounds the Green Zone, the Baghdad Airport, and the corridor that connects them. Camp Cropper is administered by the MNF-I just as a US state prison can be administered by a private corporation.

Different functions can be assigned to different national forces. For example, medical services at Camp Cropper were provided for a period by a Romanian medical unit under the MNF-I (who reported up through their national chain of command). Guards for the camp are typically provided by US MP units that also transport prisoners to a from the CCCI during trials. Prison guards, or even the warden, do not have the power on their own to lock up new prisoners or release existing prisoners. This can only be done by order of the court of competent jurisdiction (the CCCI).

This produces a complex mess that the DC District Court tried to express as clearly as possible in its decision on the Munaf petition:

"The United States has not asserted and does not profess to have the independent right to order that petitioner be moved, tried, punished, or released. Petitioner is thus under the actual, physical custody of MNF-I, a multinational entity separate and distinct from the United States or its army. He is in the constructive custody of the Republic of Iraq, which is seized of jurisdiction in the criminal case against him, and which controls his ultimate disposition. Petitioner thus has two custodians, one actual and the other constructive: MNF-I and the government of Iraq. Petitioner has not shown that either custodian is the equivalent of the United States for the purposes of habeas corpus jurisdiction."