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Justice for Americans

No matter what the administration says, two U.S. citizens held by the military in Iraq deserve a hearing.

March 27, 2008

Soon the U.S. Supreme Court will rule -- affirmatively, we hope -- on whether foreigners imprisoned at Guantanamo Bay Naval Base, for all practical purposes a part of the United States, can challenge their confinement in American courts. On Tuesday, the justices confronted a question that is the mirror image of the Guantanamo issue: whether two U.S. citizens being held by the U.S. military in Iraq may seek their release by petitioning a court for a writ of habeas corpus.

Common sense suggests that the answer is yes. The federal habeas corpus statute says that the writ can be sought by a prisoner "in custody under or by color of the authority of the United States." That legal description fits Shawqi Omar and Mohammad Munaf, two naturalized U.S. citizens being held in Iraq by the U.S. military but also accused of violating Iraqi law. (Munaf was sentenced to death by an Iraqi court for kidnapping, but his conviction has been quashed.)

Not so fast, says the Bush administration. During oral arguments, Deputy U.S. Solicitor General Gregory G. Garre told the court that habeas doesn't apply because the two Americans are being held not by their adoptive country but by an international force carrying out a mandate of the United Nations Security Council. Citing a 1948 Supreme Court decision, Garre compared the two Americans to Japanese war criminals who were denied the right to habeas because they had been convicted by an international tribunal -- albeit one impaneled by U.S. Gen. Douglas MacArthur.

The 1948 decision, which didn't involve U.S. citizens, may or may not be a binding precedent in this case. The opinion was short and open to conflicting interpretations. What is clear is that, in fact if not in name, Omar and Munaf are being held not by the "coalition of the willing," as President Bush described U.S. allies in Iraq, but by their own government.

As Justice David H. Souter put it in an exchange with Garre: "In real-world terms, isn't it the case that they are under United States authority?" Souter added that if U.S. military officials were ordered not to hand the men over to Iraq, "they would obey the order ... international cooperation or not."

In a landmark free-speech decision in 1931, the Supreme Court observed that "in passing upon constitutional questions, the court has regard to substance, and not to mere matters of form." In the same spirit, the justices should reject the legal fiction urged on them by the Bush administration and allow two Americans held by U.S. authorities to assert their innocence before being turned over to Iraqi justice. And if a judge finds fault with the charges against them, they shouldn't be turned over at all but returned to their families in America.

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