The Supreme Court heard oral arguments earlier today for two consolidated custody cases: Munaf v. Geren and Geren v. Omar. (I blogged about them last week.) In these cases, the Court will assess the Bush administration's assertion that the U.S.' participation in a multinational force -- even one dominated and led by American forces -- precludes U.S. citizens who are detained by U.S. military officials from filing habeas petitions in the United States.
The government's argument -- delivered by the Department of Justice Deputy Solicitor GeneralGregory Garre -- rests on the Hirota v. MacArthur case of 1948, in which Japanese citizens detained in Japan by the Allied Powers, which were under the command of General Douglas MacArthur, filed a habeas petition directly with the Supreme Court; the Court decided that it could not adjudicate this petition since the tribunal that convicted and sentenced the petitioners was not a U.S. tribunal. There are, however, two important differences between Hirota and Munaf and Omar. The 1948 case dealt with Japanese soldiers in Hirota, while Shawqi Omar and Mohammed Munaf are both American citizens. Secondly, as pointed out by Justice Ruth Ginsburg, there was a conviction and a sentence in Hirota; Omar's case has yet to be investigated by Iraqi courts, and Munaf's conviction has been thrown out.
Garre claimed the 1948 decision points to the conclusion that it was the presence of an international authority that was key to the Court's finding that it had no jurisdiction. Justice David Souter rebutted this argument, saying, "If that rule is applied to this case, it means that the president acting alone can make an agreement for an international force or a cooperative force, and that agreement of the executive alone in effect eliminates habeas jurisdiction over an American citizen. And that obviously is in tension, if not inconsistent, with the Suspension Clause, and it's a little scary." Omar and Munaf's lawyers dispute the government's interpretation of Hirota on the grounds that it makes a mountain out of a molehill. In fact, the Supreme Court has ruled mostly favorably in three other post-9/11 cases dealing with individual rights vis a vis executive power (Hamdi v. Rumsfeld, Rasul v. Bush, and Hamdan v. Rumsfeld). In Hamdi the Court allowed the habeas petition of an American citizen initially detained in Afghanistan to be heard without bringing up the fact that the U.S. military is also part of a military coalition in that country.
The Court's decision could have significant ramifications as the use of multinational forces increases in conflict zones. Furthermore, according to the Associated Press' amicus brief, American journalists' efforts to cover wars and other international conflicts will be severely derailed if the Court decides to do away with the ability of U.S. citizens to pursue claims of wrongful imprisonment by U.S.-led coalition forces. The AP has been fighting the detention of photographer Bilal Hussein, who has been detained in Iraq by the U.S. military since April 12, 2006. Hussein has been accused of being a security threat, despite the fact that no evidence has emerged that suggests wrongdoing. --Anabel Lee
