13 Mar Canada’s Charter of Rights and Freedoms Does Not Follow the Flag
One of the big legal issues lurking amid the legal war over the war against terrorism is the applicability of U.S. constitutional rights to U.S. government actions overseas. This is an important, and highly unsettled issue under U.S constitutional law. And I am glad to discover that the U.S. is not alone (The full decision can be found here):
A judge ruled Wednesday that prisoners captured by Canadian troops in Afghanistan are not covered by Canada’s civil rights laws, complicating efforts by rights groups to stop the transfer of insurgents to Afghan custody.
Amnesty International and the British Columbia Civil Liberties Association are trying to prevent Canadian forces from turning suspected Taliban members over to Afghan officials because of reports of torture.
Federal Court Judge Anne Mactavish said the detainees do have rights under the Afghan constitution and international law — but not Canadian law. The rights groups had argued the prisoners should be protected by the Charter of Rights, Canada’s bill of rights.
Will U.S. Supreme Court judges, who may tackle a very similar issue in the Munaf case, cite the Canadian decision? On which side?
Why are you glad Julian?
Munaf was not an insurgent. He was never held by the US as an enemy combatant. He was a criminal accused of kidnapping for ransom. The US is at war with al Qaeda and the Taliban, and therefore has an independent right to detail prisoners of war in Afghanistan once the government of Afghanistan allows us to conduct that war on their territory (as the Free French approved our fighting Germans in France during WWII). We have no right to hold kidnappers, however, and do so only under an arrangement with the sovereign government of Iraq. That arrangement does not allow for interference by the US courts. Thus this may be relevant to Omar, who is a member of al Qaeda, but not to Munaf.
“a very similar issue in the Munaf case”?
The detainees in the Canadian case were Afghan citizens. Munaf is a U.S. citizen. Do you really think, Julian, that there’s any question whether the U.S. Constitution protects U.S. citizens overseas?
(Besides which, the basic question presented in Munaf involves whether there’s anything in the habeas statute that would exempt Munaf from its coverage, even though he falls within the express terms of the statute (having alleged that “he is in custody in violation of the Constitution or laws or treaties of the United States”).
Well I sure hope the constitution protects me when I live overseas – all those years the IRS were making me file income tax returns when I lived in Paris.
Best,
Ben
Under the grant of authority from Iraq through the UN Security Council, the MNF-I has the power of “internment where this is necessary for imperative reasons of security”. Clearly this does not apply to Munaf. However, since the alternative would be to turn a US citizen over to a jail run by the Iraqi Interior Ministry (and therefore the Shi’a militia), Iraq and the MNF-I have reached an agreement that some criminal suspects will also be kept in prisons guarded by US soldiers that hold security prisoners. The question is then whether a prisoner who at the time was convicted (since overturned) of a crime by an Iraqi court and held in an Iraqi prison guarded by US soldiers is “in custody under or by color of the authority of the United States” or whether he is in US custody under or by color of the authority of the sovereign government of Iraq through a delegation of powers to the MNF-I. Of course, nothing precludes Munaf from being “in custody in violation of the Constitution or laws or treaties of the United States”. US forces guarding the prison must obey both the laws of Iraq and the laws of the… Read more »
The clock is ticking on this one. On Dec 31 the authorization for the MNF-I runs out and will not be renewed. Absent any executive SOFA agreement, custody of all prisoners in Iraq will automatically transfer to the Interior Ministry. All the orders of all the courts in the US can’t stop this from happening, which is another argument why US courts don’t have jurisdiction in the first place.
Why would you suppose that the US courts have any less jurisdiction than the US President or military Howard?
The US is the “warden” of a prison. The military, President, and Courts have jurisdiction over this specific warden role. They can order a prisoner moved from one cell to another, or give him more hours of exercise in the yard, because these are decisions within the scope of a warden’s responsibility. But a warden cannot just release a prisoner because he thinks the guy got a bum deal in court. That is an authority vested only in a court of competent jurisdiction over the prisoner, and in these cases that court is the CCC Iraq not SCOTUS. I would be just as insistent that the President himself cannot legally order the release of a prisoner convicted by the CCCI. Now certainly a US soldier would follow a direct order of the President, so it is up to the President (and the courts) not to order something in violation of our international obligations. Unfortunately, for many centuries the Habeas proceeding has named as respondent the warden of the prison. Thus US Courts are under the misapprehension that they have jurisdiction over the prisoner just because they have jurisdiction over the warden. That may have been true in every previous case,… Read more »
Well the Constitution doesn’t limit the authority of the courts to prisons, but it is equally true that the entirety of Iraq is a de facto US prison camp. To quote the Lieber Code: “The presence of a hostile army proclaims its Martial Law. […] “Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law: it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.” And what the Constitution says is: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; –to all cases affecting ambassadors, other public ministers and consuls; –to all cases of admiralty and maritime jurisdiction; –to controversies to which the United States shall be a party; –to… Read more »
Err, Ben. I understand you speak in jest, but citizenship is an idependent basis for extraterritorial jurisdiction, so your citizenship makes clear you can be reached by US law even when overseas. The question is whether it applies to non-citizens when they are not within US territory. See US v. Verdugo-Urquidez, 494 U.S. 259 (1990)(Fourth Amendment does not apply to US agents breaking into a Mexican’s home in Mexico).