Prisoner's Transfer To Iraqis Is Blocked

By Michael Powell
Washington Post Staff Writer
Saturday, February 4, 2006

A U.S. District Court judge temporarily blocked the federal government from transferring an American citizen to the custody of the Iraqi government, noting Friday that the move could place the prisoner at risk of torture and indefinite confinement.

American forces arrested Shawqi Omar, a naturalized U.S. citizen, on Oct. 29, 2004, at his apartment in Baghdad. Since then, he has been held at the U.S.-run Camp Bucca in southern Iraq and at Abu Ghraib and Camp Cropper in Baghdad.

The United States military has not charged Omar with a crime, nor has it let him talk with his U.S. lawyers, who now number about half a dozen. The attempt to transfer Omar to Iraqi custody came after defense attorneys filed legal papers on his behalf.

In temporarily blocking Omar's transfer, U.S. District Court Judge Ricardo M. Urbina acknowledged that the case is laden with constitutional questions.

"The court recognizes the tension created by the constitutional implications arising out of judicial versus executive branch authority on the matter," Urbina wrote. "The court directs counsel to address this issue head on."

A spokesman for the Justice Department said yesterday that its lawyers had not had a chance to offer counter-arguments. The government expects to file legal papers -- and its first acknowledgment that Omar has been in American custody for 15 months -- on Tuesday.

An Iraqi official told The Washington Post last month that Iraqi prisoners have been subjected to "severe torture" in Iraqi-run prisons. The commander of U.S.-run prisons in Iraq said last month that the military will not turn over detainees until they are satisfied that such abuse has stopped.

Omar, who was born in Kuwait and came to the United States with his family about 25 years ago, moved to Baghdad after the U.S.-led invasion in hopes of gaining reconstruction contracts, according to legal papers filed by his lawyers. U.S. troops detained Omar at his Baghdad apartment, where he had been living with his 10-year-old son.

Omar's wife lives in Amman, Jordan; his parents live in North Carolina.

Omar has been able to talk by telephone a dozen times with his wife and family. He has never talked with his lawyers, in large part because the U.S. military has not formally charged him.

"Mr. Omar is an American citizen, and he has a right to a lawyer," said Susan L. Burke, a Philadelphia-based lawyer who represents Omar, as well as hundreds of Iraqis in U.S. military custody. "Obviously, we are seeking to protect his rights."

Burke and lawyers with the Brennan Center for Justice at New York University and the MacArthur Justice Center at the University of Chicago filed papers on Omar's behalf in December. They argued that Omar is a U.S. citizen in U.S. custody and that the government should charge or release him.

The U.S. District Court directed the Justice Department to file a response next week. But on Thursday, Ned White of the Justice Department sent an e-mail to Burke, Omar's attorney. "Mr. Omar is currently in the custody of Multinational Force-Iraq and a determination was previously made to refer his case to the Central Criminal Court of Iraq," White wrote. "Please be advised that, whenever scheduled, we would not be able to disclose to you the date of any hearing for security reasons."

Burke asserted in court papers filed this week that the government's actions were intended to subvert Omar's rights and that they placed him -- as a Sunni Muslim in a Shiite-dominated security apparatus -- in clear danger.

"The government's attempt at a middle-of-the-night transfer," the defense wrote, "to a foreign government that the United States has publicly stated engages in torture in an effort to avoid judicial review is conduct that shocks the conscience."

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