Ability to Challenge Transfer to Foreign Custody Is Limited

By Carrie Johnson
Washington Post Staff Writer
Friday, June 13, 2008

A unanimous Supreme Court ruled yesterday that two U.S. citizens accused of terrorism-related crimes in Iraq cannot use American courts to challenge their transfer into foreign custody.

Relatives of Shawqi Omar and Mohammad Munaf, who were captured by military forces on suspicion of terrorism links, had asked federal judges in the District to review their cases, citing the fear that they would be tortured.

Chief Justice John G. Roberts Jr. made clear that the men had the right to file habeas corpus petitions in U.S. courts attacking their detention. But he said that option offered little comfort for Omar and Munaf, as it would be inappropriate for American judges to bar the military from transferring accused criminals into the custody of foreign governments that wish to prosecute them.

"Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution," Roberts wrote.

Omar, who holds joint American-Jordanian citizenship, was captured in 2004 during a raid of his Baghdad home. Authorities assert that he provided support to Abu Musab al-Zarqawi, the leader of the group al-Qaeda in Iraq who was killed in 2006. Omar's case has been on hold pending the Supreme Court appeal.

Munaf, a citizen of both Iraq and the United States, traveled to Iraq in 2005 with a team of Romanian journalists. The group was kidnapped and held for two months. Munaf was convicted of being involved in the plot and was sentenced to death, but an Iraqi appeals court later overturned the conviction and is reexamining the prosecution. His attorneys say he was an unwitting victim of kidnappers, not a conspirator.

Civil liberties groups and defense attorneys for the detainees raised the likelihood that they would be tortured in seeking review of their cases in U.S. courts. The majority decision yesterday said that allegations of torture were "a serious concern" but one best addressed by Congress and the State Department, not the judiciary.

In a short concurring opinion, Justice David H. Souter said the ruling would not foreclose U.S. citizens from turning to American courts to prevent their transfer into foreign custody, where "the probability of torture is well documented, even if the Executive fails to acknowledge it." He was joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer.

In a statement, the Justice Department expressed pleasure with the ruling, saying, "The Court's decision ensures that the Iraqi courts can proceed with the prosecution of the habeas petitioners for serious offenses committed in Iraq."

Joseph Margulies, a lawyer at the MacArthur Justice Center at Northwestern University who argued the case for the detainees, said he is disappointed in the ruling and sought to limit its application. "If Iraq disavows the intention to prosecute, as we expect in the Munaf case, then there is no basis for the U.S. to continue to hold him," he said.

The cases are Munaf v. Geren and Geren v. Omar.

Also yesterday, the court ruled 5 to 4 that judges do not need to provide advance notice to prosecutors or defense lawyers when they consider imposing a prison sentence that differs from the advisory guideline range.

In an unrelated case, a majority led by Justice Anthony M. Kennedy threw out a lower-court decision that had granted victims of human rights abuses in the Philippines access to $35 million in a bank account that had been controlled by the late dictator Ferdinand Marcos.

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