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Comments on Criminal Issues
April 17, 2007
Court Allows U.S. Citizen to be Executed in Iraq
Mohammad Munaf is an American citizen. In 2005 he traveled to Iraq where, one year later, he was convicted on kidnapping charges and sentenced to death by the Central Criminal Court of Iraq. See, Munaf v. Green, WL 1029074 (D.C. Cir. 04/06/07)
Munaf is being held in the custody of the United States military which is “serving as part of the Multi-National Force-Iraq.” He filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. Id. He named the Secretary of the Army and others as respondents. He did not challenge his conviction. He challenged his “custody” by the U.S. military.
Shortly after Munaf’s conviction, the D.C. district court ruled that it “lacked jurisdiction” to entertain his habeas petition and summarily dismissed the application. Id. Munaf appealed to the D.C. Circuit Court of Appeals.
The appeals court rejected the appeal, saying that, “constrained by precedent, we hold that the district court does not have the power or authority to entertain Munaf’s [habeas] petition …” Id.
In reaching its decision, the D.C. Circuit relied upon two nearly six decade old by precedents: one by the U.S. Supreme Court and the other by its own court.
The Supreme Court decision was rendered in 1948. It dealt with Japanese citizens in the wake of World War II trying to file writs of habeas corpus directly in the Supreme Court. These foreign citizens were being held in custody in Japan after being tried by military tribunals authorized by the late General Douglas McArthur “acting as the Supreme Commander for the occupying Allied Forces.” See, Hirota v. McArthur, 338 U.S. 197, 198 (1948)
In a short per curiam decision, the Supreme Court held that the military tribunal “[was] not a tribunal of the United States” and that “[u]nder the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners.” Id.
The D.C. Circuit precedent relied upon by the Munaf court was Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949). The Flick decision involved a habeas corpus petition filed by a German citizen held by American forces in Germany after being convicted by a military tribunal. The Flick court turned to Hirota for instruction: “Was the court which tried and sentenced Flick a tribunal of the United States? If it was not, no court in this country has power or authority to review, affirm, set aside or annul the judgment and sentence imposed on Flick.” Id., at 984. Like Hirota, the Flick decision held that the military tribunal was not a U.S. Court, and, therefore, the district court lacked jurisdiction to entertain Flick’s habeas petition. Id., at 986.
Recently the D.C. Circuit departed from Hirota and Flick in the case of Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007). In Omar a habeas corpus petition was filed on behalf of Omar, an American citizen also being held by the United States military in Iraq as part of the Multi-National Force-Iraq. Id., at 3. But unlike the petitioners in Hirota and Flick, Omar had neither been charged nor convicted by a non-United States court. The D.C. Circuit in Munaf said that “’we distinguish Hirota and Flick on this basis’ and went on to hold that the district court had jurisdiction to hear Omar’s habeas claim.” Munaf, supra., WL 1029074 at 1.
The D.C. Circuit, however, did not make the same distinction between Hirota and Flick and Munaf’s case. It said these two cases “controlled” in the Munaf case. “The MNF-I is a multinational force, authorized by the United Nations Security Council, that operates in Iraq in coordination with the Iraqi government. The CCCI is an Iraqi criminal court of nationwide jurisdiction and is administered by the government of Iraq; it is not a tribunal of the United States. Accordingly, the district court had no power or authority to hear the case.” Id. at 2.
Attorneys for Munaf argued that Hirota (and by extension Flick) did not control because he is a U.S. citizen and that citizenship is “a head of jurisdiction and a ground of protection.” See, Johnson v. Eisentrager, 339 U.S. 763, 769 (1950). The attorneys reasoned that as long as a U.S. citizen is held in the physical custody of U.S. officials habeas corpus is available per U.S. Supreme Court case law. See, Braden v. 30th Judicial Circuit, 410 U.S. 484, 495 (1973).
The Munaf attorneys conceded that an American held in the custody of a foreign government does not have a right to habeas corpus. See, U.S. ex rel. Keefe v. Dulles, 222 F.2d 390, 391-92 (D.C. Cir. 1954)[no habeas jurisdiction over American held in French prison by French jailers]. But the attorneys argued that since American custodians answer solely to United States law, they are subject to the custody restraints of the writ of habeas corpus.
The D.C. Circuit rejected these arguments, saying: “ … Munaf’s citizenship does not take this case out of the ambit of Hirota and Flick. Hirota did not suggest any distinction between citizens and non-citizens who were held abroad pursuant to the judgment of a non-U.S. tribunal. Indeed, Justice Douglas wrote a separate opinion criticizing the Hirota majority for seeming to foreclose habeas review even for American citizens held in such circumstances … In Omar, we held that ‘the critical factor in Hirota was the petitioners’ convictions by an international tribunal’ … We explained that, because Hirota ‘articulates no general legal principle at all,’ the decision is controlling as a matter of precedent if the circumstances important to the Court’s decision are present here … as in Hirota, Munaf’s case involves an international force, detention overseas, and a conviction by a non-U.S. court. As we noted in Omar, conducting habeas proceedings in the face of such a conviction risks judicial second-guessing of a non-U.S. court’s judgments and sentences ,,,” Id., at 2.
The real issue in Munaf, as it has become in most terrorism cases today, is the power of the Executive Branch to wage a unilateral “war on terrorism.” The Government in Munaf argued that the President had the unlimited authority to enter into unfettered agreements with foreign countries – agreements that bestows upon the U.S. military an unrestrained “independent authority” to detain American citizens like Munaf, as well as non-citizens, in a custody beyond the protection of the U.S. constitution and this nation’s laws.
In effect, the President of the United States with the informal “war on terror” has assumed the powers of a King. Historically, in our country the authority of any Federal official, even the President, emanated exclusively from the Constitution. For example, the U.S. Supreme Court has held that “no agreement with a foreign nation cannot confer power on the Congress, or any other branch of Government, which is free from the [Constitution’s] restraints.” See, Reid v. Covert, 357 U.S. 1, 5-6, 16 (1957).
Through the exclusive authority of its Executive Branch, the United States now holds non-citizens in secret and non-secret prisons throughout the world. These prisoners, who have become known as “enemy combatants” or “detainees,” do not enjoy any constitutional protections, civil liberties, and benefits of any laws of the United States under the Congressional Detainees Fair Treatment Act and Military Commission Act. Under the quasi-official license of these Acts, these prisoners are routinely subjected to physical torture, psychological abuse, and mental duress at the hands of their military custodians and government interrogators without any judicial remedy.
This presidential “war on terror” around the world has created a “war of ideology” within every branch of government in this country, including the U.S. Supreme Court. In 2004 the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) held that our government can never maintain an “unchecked system of detention.” Id., at 530 (plurality opinion), The Congress responded with the Military Commission Act in 2006 which granted the Executive Branch the absolute authority to maintain “unchecked system[s] of detention” anywhere in the world - and by refusing to review earlier this year the D.C. Circuit’s decision in Boumediene, the Supreme Court lent credence to the dangerous notion that the President of the United States can wage the “war on terror” in any manner he sees fit, unconstrained by the Constitution and the laws of the United States.
The Government of Iraq is now free to execute Mohammad Munaf, an American citizen. What will happen when the Iraqi government, or any other government, captures, tries, convicts, and sentences to death an American citizen with a non-Muslim name?
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