U.S. judges can't pull Americans from Iraqi courts

Federal judges may not exert the power of the US courts to prevent the American military in Iraq from turning a US citizen over to Iraqi courts for criminal prosecution.

In a 9-to-0 decision announced on Thursday, the US Supreme Court ruled against two American citizens seeking to prevent their prosecution in Iraqi courts for alleged crimes.

The high court said that even though American citizens enjoy a constitutional right to test the legality of their detention before a neutral judge, American judges do not have jurisdiction to hear such habeas corpus petitions when the detention takes place overseas at the request of a sovereign country.

"Those who commit crimes within a sovereign's territory may be transferred to that sovereign's government for prosecution," wrote Chief Justice John Roberts for the court.

The ruling comes in two consolidated cases of US citizens accused of involvement in separate plots to kidnap and ransom foreigners in Iraq. Both say they are innocent.

In one case, Munaf v. Geren, the US citizen-detainee was turned over to Iraqi authorities and convicted. In the other, Geren v. Omar, a federal judge ordered US forces not to turn the American over for trial.

A federal appeals court in Washington, D.C., later ruled that the federal courts retained jurisdiction over the American who had not yet been tried by the Iraqis. But the same appeals court ruled that it had no jurisdiction to consider the case of the citizen-detainee who had already been tried and convicted by the Iraqis.

In its ruling on Thursday, the high court said both habeas corpus petitions should have been promptly dismissed.

"Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority," Chief Justice Roberts wrote. "Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them."

Government lawyers had argued that the two men were trying to use the US court system to avoid being held accountable in the Iraqi courts for their alleged crimes.

The two men are Mohammad Munaf and Shawqi Omar.

Mr. Munaf is a dual US-Iraqi citizen. He is suspected of plotting with Iraqi gunmen who kidnapped and ransomed three Romanian journalists in March 2005. Munaf had been hired by the journalists as a translator and guide.

The journalists were eventually released. But Munaf was detained and questioned by the US military. He was held in open-ended detention without charge in an American military prison in Baghdad.

Lawyers working on Munaf's behalf filed a habeas corpus petition with a federal judge in Washington. In response, US officials turned Munaf over to Iraqi authorities.

Munaf's lawyers complained that as a Sunni Muslim, their client might face torture at the hands of Iraqi investigators working to obtain a confession.

According to the government's brief in the case, "Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists."

But the brief also notes that Munaf recanted his confession at trial, saying the statements had been coerced. Nonetheless, Munaf and five codefendants were convicted and sentenced to "execution by hanging until death."

Then, in February, an Iraqi appeals court threw out Munaf's conviction and death sentence. It ordered more investigation.

Both a federal judge and a federal appeals court panel ruled against Munaf. They ruled that since US troops are part of a multinational force authorized by the United Nations, Munaf's detention overseas in Iraq is not within the jurisdiction of the US courts.

In its ruling on Thursday, the Supreme Court rejected the argument that the federal court lacked jurisdiction because American forces in Iraq serve as part of a multinational force. The court said it is clear that US forces in Iraq answer to the president.

But the victory was of little benefit to Munaf, who nonetheless was found to be outside the jurisdiction of the federal courts because of his status as a criminal defendant in Iraq.

The second case involves Mr. Omar, who is a citizen of both the US and Jordan. Following the US invasion, Omar moved with his wife and six children to Baghdad hoping to find work in the reconstruction of Iraq.

In 2004, US forces raided Omar's Baghdad home and discovered an Iraqi "insurgent" and four Jordanian "jihadist fighters." The men are said to have admitted to a plan in which Omar and the jihadists would kidnap foreigners and demand ransom. Some of the men later recanted statements implicating Omar.

Omar was taken into US military custody and held without charge. He was denied access to his wife, the US consul, and a lawyer.

In December 2005, Omar's wife filed a habeas petition asking a federal judge in Washington to rule on the legality of her husband's detention. The petition also asked the judge to block the US military from transferring Omar to Iraqi jurisdiction for a trial until a US court could rule on the lawfulness of his detention.

Unlike the Munaf case, the federal judge in Omar's case ruled that US courts have jurisdiction to examine such cases. In addition, the judge ordered the US government not to transfer Omar to Iraqi custody until the pending issues were resolved. A federal appeals court panel upheld the order.

In reversing the decision in the Omar case, the high court said the district court abused its discretion in ruling for Omar.

On the issue of torture, Roberts said that allegations that an American citizen might be subject to abusive treatment once turned over for prosecution by a foreign government is a "matter of serious concern."

But he said such concerns are to be addressed by the political branches, not the judiciary. He noted that the State Department assesses foreign legal systems. "The judiciary is not suited to second-guess such determinations – determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government's ability to speak with one voice," he wrote.

"In contrast, the political branches are well situated to consider sensitive foreign policy issues," he said, "such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is."