Imprisoned in Iraq
The Supreme Court will decide if two U.S. civilians charged under Iraqi law may appeal to U.S. courts.

Monday, March 24, 2008

MOHAMMED Munaf and Shawqi Ahmed Omar are U.S. citizens who traveled separately to Iraq. The men were subsequently arrested there -- Mr. Munaf in 2005, Mr. Omar in 2004 -- for allegedly breaking Iraqi law in unrelated cases. They are being held by the Multinational Force-Iraq (MNF-I), a military force authorized by the United Nations. The MNF-I is staffed with soldiers from a number of countries and tasked with helping the Iraqi government in law enforcement matters. The two men argue that the MNF-I is a legal fiction and a sham; they claim that because the United States dominates and controls the MNF-I it should be recognized as a U.S. military force. Recognition of this truth, they argue, should allow them to appeal their detentions to a U.S. court. The U.S. Supreme Court is scheduled to hear oral arguments in the case tomorrow.

The men may very well be innocent; the original kidnapping conviction against Mr. Munaf was thrown out after an Iraqi court found questionable evidence in the case. Mr. Munaf is being held while Iraqi prosecutors appeal the dismissal. Mr. Omar, who is suspected of involvement in an insurgent kidnapping operation, has not been formally charged because a U.S. court essentially froze the proceedings against him; he is being held as a "security internee."

We see no basis for the court to grant the detainees access to U.S. courts. It is a well-established tenet of international law that no country has the right or power to interfere with the legal system of another sovereign country. A citizen of France, for example, arrested and charged in the United States for a breach of U.S. laws would be processed through the U.S. criminal justice system. A French judge would have no jurisdiction to interfere with the U.S. proceedings. On the other hand, the government of France has an interest in seeing that its citizens are accorded all of the rights due under the U.S. system; if France has a grievance, it may try to resolve it through diplomatic means.

Mr. Munaf and Mr. Omar are being held by U.S. forces acting under the auspices of a legitimate international force. The United States may very well dominate the MNF-I, but the legal authority for the force comes not from the United States but from the United Nations. In turn, the MNF-I is acting under orders of the Iraqi government, which suspects the men of violating the country's criminal laws. The two men have access to Iraqi courts and legal representation; they have each had hearings in their cases, and Mr. Munaf was the subject of a trial. Their situation is dramatically different from that of terrorism suspects detained at Guantanamo Bay, Cuba. Those detainees are entirely under the control of U.S. forces and are subject only to U.S. law. There is no other country that is "sovereign" over Guantanamo and no other legal system to which these detainees may seek relief.

While the United States must allow the Iraqi legal system to work, it has a strong interest in seeing that Mr. Munaf and Mr. Omar are treated fairly -- inside and outside of an Iraqi court. The U.S. government acknowledges in court documents that "reports of torture remain a concern" in some sectors of the Iraqi government. If the two men are at some time turned over directly to the Iraqi government, the United States must use its considerable diplomatic muscle to ensure that its citizens are not subjected to such treatment.