The question seemed settled. If you're an American in jail, you have a right to challenge your detention in court, whether you were arrested in an inner-city drug deal or captured on suspicion of terrorist activities by the U.S. military in Afghanistan.
But the constitutional right of habeas corpus is not so clear for two naturalized U.S. citizens accused of terrorist ties who have been imprisoned for the past several years in Iraq. Instead of allowing them to face justice in the United States, the military wants to transfer them to the Iraqi judicial system.
Tomorrow the U.S. Supreme Court will hear arguments on whether the detainees, Mohammad Munaf and Shawqi Ahmad Omar, have a constitutional right to challenge their detentions in federal court. Both men have asked the courts to bar their transfer to Iraqi jurisdiction on the grounds that they may be tortured while in Iraqi custody. Lower courts disagreed on whether U.S. judges have jurisdiction to hear their cases.
The Supreme Court will not delve into the merits of whether Omar and Munaf should be held by the military. But the cases have broad implications for how the United States can handle Americans caught in battle against it. Though the United States has faced many legal challenges to its detention policy in the war on terrorism, these cases are particularly significant because they strike at the heart of what rights an American citizen has in the face of allegations of terrorism. "They have the potential to have a profound impact on the ability to detain battlefield combatants," says Geoffrey Corn, a former military lawyer and now a professor at the South Texas College of Law.
Ordinarily, American citizens held by the United States would have a right to challenge their detention—or extradition to another country—in federal court. This guarantee holds even for an American citizen captured in battle against the United States. That was the ruling in a 2004 Supreme Court case that held that the government could not indefinitely hold Yaser Hamdi, an American citizen of Saudi Arabian descent captured by U.S. forces in Afghanistan in 2001. (The United States ultimately released Hamdi to Saudi Arabia on the condition that he renounce his U.S. citizenship and agree not to sue the United States over his detention.)
But the United States argues that Omar and Munaf have a different legal standing than Hamdi because they are being held by a multinational military force, not the United States—even though the United States acknowledges the men are in the custody of American soldiers. The government bases its argument on a 1948 Supreme Court case, Hirota v. MacArthur, that held that federal courts did not have jurisdiction to review habeas petitions of Japanese nationals held by Allied forces during World War II. Allowing the federal courts to intervene, the government wrote in its brief, "would interfere with the foreign sovereign's efforts to prosecute individuals for criminal conduct within its borders."
Omar and Munaf, however, argue that their case has one key difference: The petitioners in the Hirota case were not U.S. citizens. What's more, they argue, having an international coalition does not mean the United States is not ultimately in control over the Iraq war. "This is the administration's effort to avoid judicial review," says Jonathan Hafetz, litigation director at the Brennan Center for Justice, which supports the detainees. "It's a very, very fundamental question and one there shouldn't be any trouble with," says Eugene Fidell, president of the National Institute of Military Justice, which filed a brief in support of the detainees.
The lower courts have taken a different position concerning both men. Munaf is a dual Iraqi-American citizen who was living in Romania and traveled to Iraq in 2005 as a translator for Romanian journalists. Not long after they arrived, the journalists were kidnapped, and after their release Munaf was held on the suspicion that he helped in their capture. Although he confessed to participating, he recanted during a trial in an Iraqi court, saying his confession had been coerced. He then petitioned a U.S. federal court for his release, but the court held that it did not have jurisdiction to hear his case, in large part because he had already faced justice in the Iraqi system. Just last month, however, the Iraqi appeals court overturned Munaf's conviction.
Omar fared better in the lower court. Born to Jordanian parents in Kuwait, Omar was once a member of the Minnesota National Guard. In 2004, however, he was captured during a military raid on his Baghdad home, where the government alleges he was harboring an Iraqi insurgent and four Jordanian fighters. The military alleges Omar ran a kidnapping ring targeting foreigners and that he was close to the late insurgent leader Abu Musab Zarqawi. Indeed, Omar was even charged in a Jordanian indictment along with Zarqawi in an alleged chemical plot. Omar says he is innocent and came to Iraq to look for reconstruction work. The United States says it wants Omar to face justice in the Iraqi system, but a federal appeals court held that he could not immediately be transferred to the Iraqis without further review.
Ultimately, though, the desire of the United States to transfer the detainees represents a change from the treatment that was once afforded American citizens captured abroad, says Sean Watts, a former military lawyer and now a professor at the Creighton University School of Law. "It's a different ballgame [now] when you're dealing with United States citizens," he says. "These cases are departures in that we are willing not to treat them with usual restraint and deference."