During a conference call late yesterday afternoon, lawyers at the Brennan Center for Justice briefed the press on the details of two upcoming Supreme Court cases, Geren v. Omar and Munaf v. Geren. These so-called "war on terror cases" are what Jonathan Hafetz of the Brennan Center called "yet another chapter in the story of the administration's attempts to avoid judicial review, to avoid access to courts, and to create a prison beyond the law."
The cases of Shawqi Omar and Mohammad Munaf present the constitutional question of whether or not American citizens who are seized and detained abroad have the same fundamental rights as U.S. citizens arrested at home. Both men have been detained by the United States in Iraq for more than two years without judicial review or due process. Omar had moved to Iraq looking for work as a contract worker in construction; since being seized in 2004, he has been held in Abu Ghraib and other U.S. detention facilities. The U.S. government has also said it wants to transfer Omar over to Iraqi authorities to be tried. Such a transfer is likely to result in torture and death. Munaf was seized by U.S. military officers in Iraq in 2005 while working as a translator for Romanian journalists. American authorities brought Munaf before an Iraqi court, which swiftly convicted him and sentenced him to death. That conviction has since been reversed.
The government's legal position is that the normal rules for detaining American citizens do not apply in these cases, as the United States, as just one member of a military "coalition," is acting under United Nations authority. The government makes this claim based on a nine-sentence long Supreme Court opinion from 1948 that has almost never been cited in any published case. Essentially, this argument invokes the U.N. to evade the constitution and to eliminate the basic rights it guarantees.
Torture is another important issue in the Omar and Munaf cases. The government's position is that it is enough to attain assurances from foreign governments that they will not torture U.S. citizens who are transferred to them, but this is far from adequate. Just as the government cannot engage in coercion against people, it cannot hand them over to other governments that will potentially do so. Later this month the Supreme Court will hear both cases and decide whether military officials have the power to seize and detain a U.S. citizen without judicial review, based on the claim that U.S. forces are "agents" of a multinational entity. It will also decide whether those officials can hand an American over to another government that is likely to torture and kill him or her. The Brennan Center will represent both Omar and Munaf, and it is also pursuing separate relief before U.N. forums.--Anabel Lee
