07 Dec Does the Writ of Habeas Corpus Extend to U.S. Citizens Held by Multinational Forces?
The U.S. Supreme Court seems to want to answer that question, or at least some aspects of that question, by agreeing to hear two petitions from U.S. citizen detainees being held in Iraq by multinational forces. The consolidated cases arise from two lower court appellate decisions, both from the D.C. Circuit: MUNAF V. GEREN, SEC. OF ARMY and GEREN, SEC. OF ARMY, ET AL. V. OMAR.
Apparently, the cases will turn on the interpretation of Hirota v. Macarthur, a Supreme Court decision from the WWII era holding that U.S. district courts do not have jurisdiction over tribunals constituted by allied or multinational military forces. That case may or may not be distinguishable. The larger issue is that U.S. citizen detainees now clearly have some constitutional right to Due Process pursuant to the Supreme Court’s decision in Hamdi v. Rumsfeld. The question now is whether they can seek U.S. civilian court relief when they are being held by multinational forces? A tricky question which I doubt the Supreme Court will really clear up satisfactorily. But it should be a very interesting case nonetheless in an increasingly interesting Supreme Court foreign affairs docket this year.
A US Citizen in Germany robs a bank, kills a policeman, then runs away. During his escape he hops a fence on a NATO base and is captured by MPs who initially hold him on security reasons (unauthorized entry to a military base). The German police become aware that he on the base, but before they can arrest him a US District Court issues a Writ of Habeas on the theory that he is a US Citizen held by US soldiers.
Does anyone believe that the outcome of this case depends on whether the MPs are regarded as US soldiers or NATO soldiers? Yet this is the argument (with Germany replace by Iraq and NATO replaced by the MNF-I) that these cases raise. Hirota was about trial by a military tribunal under the government of occupation set up by the allies for Japan. Iraq, however, became a sovereign nation in July 2004 and today they seek the transfer of criminals who happen to be held on a US military base. There is no Status of Forces Agreement that blocks Iraqi jurisdiction. As with Germany, Iraq is simply a formerly occupied country that continues to host US forces.
The Iraqis have every right to simply walk into Camp Cropper and take custody of wanted criminals. This is one Supreme Court case that is not actually within the control of the US Government. Although Iraq has been willing to not press the issue, they can dispose of this case at any time by simply insisting on their sovereign rights and taking the prisoners. The US Courts have issued orders preventing US forces from initiating the transfer, but they cannot order US forces to prevent Iraqi police from taking custody of wanted criminals on Iraqi soil. Even if the Supreme Court were to rule in favor of Munaf and Omar, the Iraqis could ignore the decision and seize them the next day.
Outer Space and habeas (Long Arm Jurisdiction):
David Addington: “first Gitmo, now Multi-National Forces. . . The Supreme Court couldn’t possibly have jurisdiction in Outer Space! We’ll close Gitmo and put the detainees into orbit.”
Unnamed advisor: “Sir, I’m afraid they outmaneuvered us with the Outer Space Treaty of 1967.”
D.A.: “Curses, foiled again! They’ve been planning this longer than I thought. . . . But if we pay Poland to launch a space station . . . .”
Mr. Gilbert is correct about the right of Iraq to march in and arrest the plaintiffs. But Iraq hasn’t done so (the plaintiffs may not even be ‘wanted’ by Iraqi authorities) and frankly, Iraq is unlikely to do so unless the U.S. quietly suggests it (thus the injunction). As for the multi-national force distinction, these are U.S. troops, and these are American citizens they are holding. The rights of citizens vis a vis their own government do not completely vanish at the border, even when their government is participating jointly with other governments. Do you have the right to due process from your embassy, yet your military can ‘indefinitely detain’ you? Which do you think is a greater imposition?
D.A.: “So, we transfer Camp Cropper to Polish troops! They still have 900 guys there.”
“No sir, remember the injunction.”
Frankly, the outcome Mr. Gilbert envisions would be fine legally: of course a U.S. court can review the actions of American troops toward American citizens overseas, and of course that same court cannot bind or control the sovereign host nation.
These cases raise a strange and unorthodox question pertaining to habeas jurisdiction. But is anyone shocked that unprecedented assertions of power by the executive are responded to with unprecedented assertions of power by the judiciary?
Especially when there’s a profoundly unassertive legislature.
D.A. “I’ve got it. We’ll get Congress to pass a Multi-National Detainee Act without reading it, and we’ll hire Yoo to write a memo that the Outer Space Treaty is unconstitutional to the extent it restrains plenary executive power, oh and it’s quaint, too. Maybe he could make fun of it for being signed a year after Star Trek started. ‘Peaceful uses’ of space indeed!”
Iraq has already convicted and sentenced one prisoner on kidnapping charges and wants to try the other who was found with bombs and bomb making materials (in the house of the Abu Musab al-Zarqawi). However, since Iraqi police are not the most trustworthy types they keep important prisoners in Camp Cropper where US MPs stand guard. That is the problem. Formally Habeas applies to the jailer and not the sovereign under whose authority the jail operates. Since the jailers are Americans, some US courts have narrowly assumed that they can assert jurisdiction. This may be the only Habeas case where the prisoners are specifically asking to remain in jail and asking the courts to prohibit their release.
Some raise objections to some of the evidence and procedures in the Iraqi courts. So what. It is Iraq, and if you want to appeal an Iraqi court decision you have to appeal inside Iraq and not to some US court.
To allow litigation to continue the jailers are enjoined from, on their own initiative, transferring the prisoners to some other custody. It is not impossible that the MNF-I might put the Poles in charge of the prison, but the order would have to come from a non-US officer. Clearly the Iraqis can collect the prisoners any time they want. Since the US cannot help wanted criminals escape,eventually these guys end up in Iraqi hands. The transfer can be delayed indefinitely (unless the Democrats get their way and set a deadline for withdrawing troops).
The government argued the wrong law (Hirota) in the first case and won. They then made the same argument in the second case and lost. However, the government brief to the Supreme Court is vastly better than previous arguments, with extensive references to the outrageous presumption of US courts that they can interfere with the judicial process of another country, and the Supreme Court is a lot smarter than the circuit judges. Do not expect this to be a 5-4 or have anything to do with ideology, or detention, or Bush.
It seems to me that, in teh absence of specific treaty provisions to the contrary, the US Supreme Court cannot (although it may purport to arrogate such a power to itself) legitimately exercise habeas corpus jurisdiction over persons in the custody of any military forces other than those of the US. Military forces are the manifestation of national sovereignty and for the US Supreme Court to try to question there actions is to question or challenge their home government. Such habeas corpus action would not be against the military contingent but against its govcernment.
In multi-national forces, the respective national sovereignties residing in the various contingents is not surrendered when the force is constituted and countries do not lose the power to command and control their own troops