Munaf v. Harvey is a habeas action currently pending in district court in DC (Judge Lamberth) on behalf of Mohammed Munaf, an Iraqi-born American citizen who apparently is being held by U.S. forces at Bagram, recently was convicted by an Iraqi criminal court for his involvement in the kidnapping of a group of Romanian journalists in Iraq in 2005, and has been sentenced to death (the government's version of events (described here) is that Munaf arranged the kidnapping in hopes of emerging a hero and thereafter obtaining various benefits; habeas counsel, not surprisingly, reject that view). The account of the trial provided by his American and Iraqi attorneys is disturbing, to say the least.
Munaf's attorneys have now moved for emergency relief, supported by a declaration describing the trial. I have not yet seen the government's opposition papers, but their opposition to an earlier TRO request is here. In brief, the government's positions are that
(1) the court lacks habeas jurisdiction because Munaf technically is not in US custody, but instead is in the custody of the Multinational Force-Iraq (MNF-I);
(2) in any event, the court should refrain from interfering on separation-of-powers and political question grounds. In support, the government cites Presidential discretion to
(a) control the nature of U.S. military participation in international coalitions, and
(b) "determine when individuals suspected of committing crimes in foreign countries may be transferred to foreign jurisdictions to face prosecution and punishment."
Notably these arguments were rejected by Judge Urbina in another U.S.-citizen-in-Iraq case, Omar v. Harvey, which is now on appeal to the DC Circuit.
As to the habeas jurisdiction issue, it seems to me that courts must proceed with tremendous care in this context, but the fact that Munaf is a citizen who appears to be in the actual physical custody of U.S. forces surely warrants some degree of judicial oversight, however deferential that review might turn out to be (cf. Hamdan). I suspect my colleague Steve will have a view on this as well, in light of his forthcoming article on Hirota.
As for the pair of additional arguments, I suspect the first principle (control over U.S. military participation in int'l coalitions), though surely correct in some contexts, will not be accepted as controlling here. The second principle - discretion to transfer for foreign prosecution - would not be accurate as a general proposition, but within the specialized context of security internee situations in the midst of armed conflict, I'm much less certain. I do know that there are specific restraints on custodial transfers within the context of a Common Article 2 conflict, but my understanding is that this is no longer the governing framework in Iraq today...or is that not right? Assuming it is right, what IHL rules would be applicable here, if any?
None of which is to say that Munaf's case should be treated the same as that of a person convicted in a run-of-the-mill domestic prosecution. But surely a citizen in this situation ought to have access to some degree of review.
Another interesting facet to this litigation is the potential impact of the Military Commissions Act, which should become law in the next couple of days. Will it put an end to the Munaf and Omar petitions, as has been suggested? I'm not sure this is correct.
First, I'm not at all sure that the MCA strips habeas as to citizen enemy combatants; I was under the impression that the jurisdiction-stripping concerned alien enemy combatants only. Please correct me if I'm wrong, of course.
Second, even if the MCA does apply to citizens in this respect, Munaf in any event is not held as an enemy combatant, but rather as a "security internee" - in this case, as an ordinary criminal (albeit one alleged to have committed a pretty terrible crime). The allegation is that he was involved in a plot to kidnap for financial gain, not as part of the insurgency. The MCA therefore will have no effect as to his habeas petition.
Comments