Balkinization  

Saturday, October 14, 2006

An American Sentenced to Death in Iraq

Scott Horton

"Logic may indeed be unshakeable, but it cannot withstand a man who is determined to live. Where was the judge he had never seen? Where was the High Court he had never reached? He raised his hands and spread out all his fingers. But the hands of one of the men closed round his throat, just as the other drove the knife deep into his heart and turned it twice."

- Franz Kafka, Der Process, chapter 10 (1925)

Today the Associated Press reports the case of an American citizen, Mohammed Munaf, seized by US Forces in Iraq in 2005. Munaf was hauled before the Central Criminal Court of Iraq, and sentenced to death following a proceeding that appears to have been extracted from a novel by Franz Kafka. By far the most distressing aspect of the entire affair is the role played in it by US Forces. "[T]wo U.S. military officials - including a soldier claiming to represent the Romanian Embassy - demanded that Munaf be found 'guilty and should be executed,' the papers say."

Yesterday afternoon I spoke with one of Munaf's American lawyers, and in the evening I discussed the case with one of the Iraqi lawyers who handled it. The judge, he said, had at a prior hearing informed defense counsel that he had reviewed the entire file and had reached a decision to dismiss the charges. "There is no material evidence against your client," he was quoted as stating. When two US officers appeared at the trial date with the prisoner, they reacted with anger when told of the Court's decision – and made clear it was "unacceptable." One of these US officers purported to speak on behalf of the Romanian Embassy, which, he said "demanded the death penalty." (The Government of Romania has since stated both that it had no authorized representative at the hearing and that it did not demand the death penalty). They then insisted upon and got an ex parte meeting with the judge - from which the defendant and his lawyers were excluded. Afterwards an ashen-faced judge emerged, returned to his court and proceeded to sentence the American to death. No evidence was taken; no trial was conducted. The sentence was entered on the basis of a demand by the two American officers that their fellow countryman be put to death.

Further details of this amazing development are found in papers filed by the Brennan Center in an emergency application to the United States District Court for the District of Columbia.

On Tuesday, the President intends to sign the Military Commissions Act of 2006, which purports to terminate the writ of habeas corpus for US detainees overseas. In so doing, he may well be confirming a death sentence for Mohammed Manaf. This case is shocking because it deals with an American citizen who is being stripped of his rights under a foreign legal process, including the right to a trial, at the insistence of US Forces. It provides strong grounds to question what US Forces are doing in the Central Criminal Court of Iraq. As a practitioner in that court, I can only say that none of the facts detailed in the Brennan Center's papers or described by the defendant's attorney strike me as surprising. They are consistent with things I observed with my own eyes in Baghdad in the spring of this year.

Comments:

These stories will keep emerging until the USA chooses the path of the rule of law again. Here is another story from todays Post

http://www.washingtonpost.com/wp-dyn/content/article/2006/10/13/AR2006101301668.html
 

Since we returned sovereignty over to the elected Iraqi government, we have also been turning over most captures to Iraqi civilian courts. However, the Iraqi civilian courts have been unable to detain terrorists captured on tips because the confidential informants fear testifying in open court because of terrorist retributions against them or their families. Thus, contrary to the inference of this article, the Iraqi courts far too frequently release military captures "for lack of evidence." As a result, terrorists are being returned to the street and killing our troops.

http://www.d-n-i.net/grossman/behind_bars.htm

The AP article doesn't provide the facts of the case, so we have no idea whether this case is similar to those noted above or on what basis the Iraqi verdict was made.

In any case, under the current law, the appeal should be made to the Iraqi courts or to the Iraqi executive for pardon, not to the US courts.

Exactly how does a United States court exercise any jurisdiction over American citizens captured and tried in Iraq under a writ of habeas corpus or any other procedure?

Exactly why should an Iraqi court obey any order from a United States court?

In the future, we need to negotiate with the Iraqis to treat the captures as military combatants either under the terms given to POWs or those given to unlawful enemy combatants. The civilian criminal court system cannot handle this problem.
 

Ah, Mr. DePalma again.

Munaf is in U.S. custody, according to the article. Are you suggesting that a writ of habeas corpus doesn't run against someone in U.S. custody?
 

Anderson:

Yes. We are only holding the prisoner for the Iraqis. The jurisdiction belongs to the Iraqi courts. We detain or release these prisoners on the basis of orders from the Iraqi courts.

This was a carefully worked out deal because the US MPs can provide better security and are not subject to threats to their families like Iraqi guards are.

It would be a disaster if the US courts attempted to intervene on the basis that US forces retain physical control of this prisoner because the Iraqis would again insist on gaining control of these prisoners with a resulting loss in security. The resulting escaped prisoners would then kill our troops.
 

Mr DePalma is very poorly informed. US Forces in Iraq claim the power to detain any individual who presents a "paramount threat to the physical safety of Multinational Forces" pursuant to Security Council Resolution 1546 and the Statement made by the Secretary of State accepting the resolution; they do not purport to act solely as an agent for the Iraqis. They have repeatedly refused to turn detainees over against the demands of the Iraqi Government, in fact, and one of these cases, involving the Pulitzer Prize-winning photojournalist Bilal Hussein, was recently discussed on the floor of Congress.

The vast majority of cases which come before CCCI result in conviction (the current statistic is between 90-95%). They do occasionally release detainees held by US Forces for "lack of evidence." One such case involved the CBS cameraman Abdul Amir Younis Hussein, who was held by US Forces for one year and whose release was ordered based on their being no evidence against him. I am fully familiar with that case as I served as defense counsel. There was no evidence against him. Claims made by the US Forces in the course of investigation turned out to be false. US Forces also offered forged documents in support of the accusation, withdrawing them when the forgery was uncovered.

In Mr Manaf's case, the claim made by US Forces was that he was involved in a conspiracy to kidnap Romanian journalists for ransome. He is not accused of being an insurgent, being involved with the insurgency or any other sort of conflict-related offense. However, there does not appear to be any evidence to sustain this accusation.

The accused in this case is in the custody of US Forces (TF-134, commanded by MG Jack Gardner) and is being held in the HVD wing of the Camp Cropper detention facility. He is therefore in the custody of the United States. That is, as far as I can see, not in dispute. I don't think any request is being made for an order to bind an Iraqi court. Rather it is sought against the Secretary of the Army, and MG Gardner, who hold the detainee in their custody.
 

I don't think any request is being made for an order to bind an Iraqi court. Rather it is sought against the Secretary of the Army, and MG Gardner, who hold the detainee in their custody.

This part was evident to anyone who realizes that "habeas corpus" is not just a Latin phrase invented by Democrats to harass the Bush administration.

Claims made by the US Forces in the course of investigation turned out to be false. US Forces also offered forged documents in support of the accusation, withdrawing them when the forgery was uncovered.

Not, I hope, a rhetorical question: any idea what investigations or disciplinary actions have resulted against the U.S. personnel in question? And was there any indication who had forged the documents?

If U.S. personnel can offer false and forged evidence with impunity, the state of the armed forces is even worse than I'd believed. Surely the JAG's are on this ...?
 

One of the problems of this system is that the US Forces use an intelligence unit, not properly trained JAG officers who understand how to build and present a criminal case. The lack of technical expertise makes things much more difficult for everyone. And what happened when the forged documents were exposed? Nothing, of course. The CCCI has no authority to discipline US Forces because they have absolute immunity from the Iraqi criminal justice system. And the unit in question chose to do nothing about it. That was also a typical outcome.
 

Unbelievable. Does anyone have any idea what is going on such that the two US officers would do this?
 

Mr. DePalma seems to be arguing that the U.S. government legally can avoid habeas review of its custody of American citizens if it transfers "jurisdiction" to another sovereign. What's the precedent, if any, on this point?
 

"Logic may indeed be unshakeable, but it cannot withstand a man who is determined to live. Where was the judge he had never seen? Where was the High Court he had never reached? He raised his hands and spread out all his fingers. But the hands of one of the men closed round his throat, just as the other drove the knife deep into his heart and turned it twice."

Are you talking about Christian Menchaca or Thomas L. Tucker? Or Nicholas Berg? Or Daniel Pearl? Or does the irony of your chosen quotation totally escape you?
 

Scott Horton said...

Mr DePalma is very poorly informed. US Forces in Iraq claim the power to detain any individual who presents a "paramount threat to the physical safety of Multinational Forces" pursuant to Security Council Resolution 1546 and the Statement made by the Secretary of State accepting the resolution; they do not purport to act solely as an agent for the Iraqis.

I never posted that the only prisoners which US forces hold are on behalf of the Iraqis. Rather, I stated that we hold this prisoner, Saddam and his lieutenants, as well as many others for the Iraqis. This you do not deny.

They have repeatedly refused to turn detainees over against the demands of the Iraqi Government, in fact, and one of these cases, involving the Pulitzer Prize-winning photojournalist Bilal Hussein, was recently discussed on the floor of Congress.

Not that this has anything to do with the case at hand, when exactly did the Iraqi government request that Bilal Hussein be turned over to their custody? All I had heard reported is that AP wanted this done.

The vast majority of cases which come before CCCI result in conviction (the current statistic is between 90-95%).

Do you have a link to this statistic? Does this statistic count all captures made by the Americans and turned over to the Iraqis? Does this statistic count all crimes or just the terror related crimes? It does not jive with the anecdotal reports from the troops on the ground who keep running into the same terrorists they had captured and turned over to the Iraqis.

In Mr Manaf's case, the claim made by US Forces was that he was involved in a conspiracy to kidnap Romanian journalists for ransome. He is not accused of being an insurgent, being involved with the insurgency or any other sort of conflict-related offense. However, there does not appear to be any evidence to sustain this accusation.

How would you know what evidence there is against Mr. Manaf?

The accused in this case is in the custody of US Forces (TF-134, commanded by MG Jack Gardner) and is being held in the HVD wing of the Camp Cropper detention facility. He is therefore in the custody of the United States. That is, as far as I can see, not in dispute. I don't think any request is being made for an order to bind an Iraqi court. Rather it is sought against the Secretary of the Army, and MG Gardner, who hold the detainee in their custody.

No one is disputing that this action before the US courts is being taken against Mr. Manaf's jailers. However, Mr. Manaf is being held in Iraq under an Iraqi criminal sentence imposed by an Iraqi court. My question was by what authority does a US court have the jurisdiction to vacate an Iraqi criminal sentence in Iraq to free Mr. Manaf?
 

Are you talking about Christian Menchaca or Thomas L. Tucker? Or Nicholas Berg? Or Daniel Pearl? Or does the irony of your chosen quotation totally escape you?

If you read The Trial and understand the quote in context, you'll see how the cases you mention have nothing at all to do with the quotation. The thing about The Trial is that the accused never knows what crime he has committed and endures a lengthy trial process that eventually ends in his own death, even though (as the quote implies) his faith in the system continues even to the point of absurdity.

People who kidnap and behead others do not claim to act according to the rule of law (well, they might, but most people wouldn't accept that claim as valid). We don't expect that they'll treat their victims nicely, and we don't expect that appealing to their legal sensibilities will change the situation.
 

Given that these American citizens (Quakers et al.) can be listed as "terrorists" for simply opposing the war;

Given that American citizens on American soil (like Jose Padilla in Chicago) can be taken into military custody on charges of "terrorist" affiliation;

Given that people arrested on American soil (like Canadian citizen Maher Arar at JFK Airport) can be shipped overseas for torture by foreign governments;

What guarantee does any American citizen have now, that he or she can't be seized at home, shipped overseas in military custody, and sentenced to death by a puppet government's court without trial?

The laws once painted on the big barn wall may or may not have been actually painted over, but it sure doesn't look like anything's left of them in terms of practical application.
 

Raven asks: What guarantee does any American citizen have now, that he or she can't be seized at home, shipped overseas in military custody, and sentenced to death by a puppet government's court without trial?

None. That is the point. And it has been the point since at least September 18, when we gave Bush a blank check for his "war" on "terror." But it is important to choose our battles on this side of the sanity divide. Not all interlocutors are legitimately interested discourse or truth; in fact most are just looking for a fight and don't mind playing dirty if it keeps the fur flying. Peace.
 

Mr. DePalma,

I am not a lawyer, and I do not know the legalistic intricacies of a case such as this. However, your entire case seems to be based on the idea that it would be harmful to the independence of the Iraqi judicial system if the U.S. were to interfere with it.

Your argument doesn't make much sense to me because of this:
"two U.S. military officials _ including a soldier claiming to represent the Romanian Embassy _ demanded that Munaf be found 'guilty and should be executed,' the papers say. The Iraqi judge, identified as Judge al-Rubayy, initially appeared ready to drop the charges against Munaf, his lawyers contend. But after meeting privately with the two military officials, al-Rubayy convicted Munaf and sentenced him to death, the lawyers say."

Please explain to me how we have not ALREADY interfered in the Iraqi judicial process - to the detriment of an American citizen.
 

Anne's link is a telling case of media framing.

The title of the piece: "Coerced Confession Traps Detainee, Lawyers Say." Yeah, sure, they would say that, right?

The actual article, which many won't read as they peruse the paper, suggest what they 'say' is backed up by evidence.

"Gravity exists, Democrat scientists say."
 

Dear Joe,

I'm afraid I'm just not understanding what you are trying to say here. Are you saying the Post is biased because they put a caveat in the title or are you saying that they are biased because they say that the detainee was trapped because of his own coerced confession?

Either way I don't find it a convincing statement. But educate us on what you are trying to say, please.
 

Mr. DePalma,

I am not a lawyer, and I do not know the legalistic intricacies of a case such as this. However, your entire case seems to be based on the idea that it would be harmful to the independence of the Iraqi judicial system if the U.S. were to interfere with it.

No, I am saying that the US judiciary has no jurisdiction in Iraq to reverse an Iraqi sentence. I am not opining on whether the sentence is just or whether interference would harm the Iraqi judiciary.

Your argument doesn't make much sense to me because of this: "two U.S. military officials _ including a soldier claiming to represent the Romanian Embassy _ demanded that Munaf be found 'guilty and should be executed,' the papers say.

You will pardon me if I have more than a small doubt as to the accuracy of this article.

The reporter with the byline is Lara Jakes Jordan, a Donkey operative posing as a reporter and is married to veteran Democratic Party operative Jim Jordan, the former executive director of the Democratic Senatorial Campaign Committee and manager of Sen. John Kerry's presidential bid. Until AP recently moved her to the national news desk in DC, Jordan specialized in hit pieces on PA's two GOP senators.

Moreover, Jordan is not stationed in Iraq and did not observe the trial which she claims to be describing. As of early October, Jordan was reporting from Washington DC.

http://articles.news.aol.com/news/_a/
top-republican-questions-what-hastert/
20060929145509990001?
ncid=NWS00010000000001

As per their SOP, AP is apparently using uncredited Iraqi stringers for stories whose facts AP never checks. Bilal Hussein is the most infamous Iraqi AP propagandist posing as a reporter, having been captured with two al Qaeda leaders, was tested positive for explosives on his person and then was discovered with bomb making materials in his apartment.

I trust AP's Iraq reporting about as far as I can spit.
 

Bart evidently did not trouble to read the article with any care.

Ms. Jordan at no point claimed to be a first-hand witness of these events. To the contrary, she repeatedly ended statements with "according to the attorneys" or "according to the papers" (they'd filed).

So Bart is here engaging is a straw-man argument, refuting at great length a claim that no-one else had actually made.
 
 

Moreover, Jordan is not stationed in Iraq and did not observe the trial which she claims to be describing. As of early October, Jordan was reporting from Washington DC.

The reporter makes it quite clear that the information is based on court papers submitted in Washington. She mentions the documents not once, not twice, but ten times in a very short article. There doesn't seem to be any obfuscation of the source or any claim by the reporter to have been present for the trial itself. So, forgive me for asking, but what is your point and why are you trying so hard to make it?
 

Bart: Depending on the how/why we are holding that prisoner (which boils down to who had him in custody first) the United States (per the Geneva Conventions) is the the "detaining power" and ulimtately responsible for his treatment (I know this because I'm an Army interrogator, and one of the things we were taught, 15 years ago; when I started interrogating, was the limits of Geneva, one of which was that we couldn't let other people abuse our prisoners, because we are responsible for them)

So trying to fob it off as us merely holding him for them is sort of like my only "holding" the drugs for my friend.

The cops won't buy it, if I had reasonable suspicions that what I was holding wasn't legal to keep.
 

"Donkey operative"? rotflmao (sure do wish there were a decent filter function for these blog comments.)
 

My comment is meant to further your case, Anne; it surely is not meant to challenge the basic facts you are pointing toward.

The media has a "he said/she said" mentality in which any fact tends not to be independently supplied, but tied to some group. Thus, in the very title of the piece (often the job of the editor, not the author of the piece itself), this article notes the "lawyer" said something.

I'm sorry, but if the title says a defense atty 'says' something, I take it with a grain of salt since it is the defense attorney's job to "say" things supportive of their client. The text of the article in fact pretty convincingly suggests the person was mistreated.

But, the causal reader would look at the title of the piece and figure "oh well, sure, the defense atty would say that." A neutral title would be "Evidence Suggests Coerced Confession" or whatnot.

BTW, this is not the first time I saw this in the WP. Thus, a piece on "crisis pregnancy centers" (pro-life jobs) used some abortion rights group to point out to a few hinky looking things (they "say"), when a neutral factfinder would see the same thing.

Again, given who is 'saying' the info, in this he said/she said environoment, facts seem partisan. This problem has been addressed by many media critics.

The reader will determine if it was a case here, but I don't think the title is just some sort of necessary "caveat" as if the mistreatment is "opinion" or something only reliant on what the defense atty says.
 

Joe,

In general I agree with you. It seems as though a lot of news is gathered by letting someone from the right and someone from the left, comment on a story. In stead of just reporting the facts.

In this case though, it seems hard to verify the facts indepently. There are the court document, there are a few news clippings from Afghanistan but thats is.
 

Brian,

You are responding to the messager not to the message. The message is that a man is being held as an enemy combatant by the government. He claims that the only evidence the government has, is its coerced confession.

Suppose that this is true, shouldn't he have recourse to an independent court?
 

Bart, the question is not whether U.S. courts can "reverse an Iraqi sentence," but whether a writ of habeas runs to obtain review of U.S. custody of a U.S. citizen where the U.S. says it's holding that citizen for another sovereign. If it does not, the U.S. is free to "disappear" its own citizens to another sovereign (say, Syria), transfer "jurisdiction" over them to that sovereign while retaining physical custody, and permit any kind of treatment it wishes.

Habeas procedure cannot work that work that way and still provide the protections that habeas is intended to provide. Just as a private prison is a state actor for purposes of habeas petitions under the 8th Amendment, the U.S. should be subject to habeas petitions for any American citizen it holds, irrespective of the sovereign for whom it happens to hold her.

As for "Donkey operative[s] posing as reporter[s]," thank you for showing whence you've come so transparently. AP has far more credibility than Elephant activists posing as objective truthtellers.
 

pecunium said...

Bart: Depending on the how/why we are holding that prisoner (which boils down to who had him in custody first) the United States (per the Geneva Conventions) is the the "detaining power" and ulimtately responsible for his treatment...

No one is accusing the military detention center of abusing the prisoner.

The facts as they have been reported are that we turned jurisdiction over this prisoner to the Iraqi criminal courts for trial on alleged crimes committed in Iraq, just as we are doing with Saddam and his lieutenants.

The prisoner is currently being held pursuant to the sentence of an Iraqi court. In order to release him, a US court would have to hold that an Iraqi court's sentence is illegal pursuant to Iraqi law and then vacate that sentence. I do not see from where a US court would get this jurisdiction.
 

Tonal Crow said...

Bart, the question is not whether U.S. courts can "reverse an Iraqi sentence," but whether a writ of habeas runs to obtain review of U.S. custody of a U.S. citizen where the U.S. says it's holding that citizen for another sovereign. If it does not, the U.S. is free to "disappear" its own citizens to another sovereign (say, Syria), transfer "jurisdiction" over them to that sovereign while retaining physical custody, and permit any kind of treatment it wishes.

Correct me if I am wrong, but I understand that the defendant committed the alleged criminal act in Iraq. That would mean that the Iraqi criminal courts would have jurisdiction over the defendant.

This is not in any way similar to a case of rendition moving a defendant who committed a crime in the US to a third country without jurisdiction for a criminal trial as you seem to be implying.

Habeas procedure cannot work that work that way and still provide the protections that habeas is intended to provide.

Habeas is simply a procedure to determine whether a prisoner is being held legally. In order to make this determination of law, though, the court must have jurisdiction. A US court does not have jurisdiction to determine if an Iraqi sentence is legal. Allowing a US court to review the Iraqi sentence in this case would be like allowing a Massachusetts court to vacate a Texas death sentence and order the prisoner to be freed pursuant to a writ of habeas corpus.

As for "Donkey operative[s] posing as reporter[s]," thank you for showing whence you've come so transparently. AP has far more credibility than Elephant activists posing as objective truthtellers.

I don't claim to be a neutral. I make persuasive arguments to support my point of view. This reporter is doing the same thing under the guise of "objective" news reporting.

However, unlike this reporter, I am not making unverified allegations as facts to support my point of view. Jordan is merely parroting the claims of unidentified "lawyers" who may or may not have seen the events in the court without any evidence that she checked the alleged facts with the Iraqi courts, the military or any other credible source with personal knowledge of what went on in the Iraqi court.

Perhaps this is old school, but when I worked on my college newspaper, the editor required that I have two source corroboration for anything I was reporting as a fact. With the reporting on Iraq, AP and Reuters have thrown that rule out the window and have no idea whether what they are being spoon fed from their Iraqi sources is indeed the truth or is instead propaganda.
 

bart, unless you moonlight working for the associated press or reuters, i assume you also have no idea of whether or not the reporters did, in fact, have two sources for their reports....

... and please don't bother to respond if all you're going to say is that we all know that reuters and the a.p. are inherently biased and no longer follow the traditional rules of accepted investigative journalism, unless you have unbiased sources you are willing to site to back up your point.
 

Tonal Crow: ...the question is not whether U.S. courts can "reverse an Iraqi sentence," but whether a writ of habeas runs to obtain review of U.S. custody of a U.S. citizen where the U.S. says it's holding that citizen for another sovereign.

Actually, this is a red-herring; looking back at the original post, "...insisted upon and got an ex parte meeting with the judge - from which the defendant and his lawyers were excluded. Afterwards an ashen-faced judge emerged, returned to his court and proceeded to sentence the American to death."

Habeas seems a paltry technicality when Army personnel can overrule a sitting judge in a sovereign jurisdiction to whom we have turned over one of our citizens. The issue at hand is not how a U.S Court could overturn the Iraqi court's conviction, but how the U.S. Army has already overturned the Iraqi court's dismissal---without evidence, without representation, without a trial.
 

Could someone provide a citation to the section of the Act that would terminate the writ of habeas corpus for US detainees overseas? I can't find it.

Thanks!
 

JT,

As I recall it was pretty much agreed that while the MCA creates the designation "Unlawful Enemy Combatant", MCA only explains how we deal with aliens so designated. If this is correct then the MCA is effectively silent on the matter of habeas for citizens and extant law would prevail.

Many people have expressed concern that the mere creation of this needless category of prisoner is dangerous; such people probably view the Army countermanding a foreign judge's dismissal as an example of why the category is a dangerous creation even if the MCA is literally silent regarding citizens.

I am disinclined to frame this in relationship to MCA; I think that's the wrong path. This was a citizen, about to be dismissed by a court for lack of evidence, who was instead sentenced to execution, still without evidence or even trial, on the say so of the Army. There can be no legitimate justification, and no amount of foolish legislation can make it legal.
 

phg said...

bart, unless you moonlight working for the associated press or reuters, i assume you also have no idea of whether or not the reporters did, in fact, have two sources for their reports....

In this AP article, did you see the reporter cite to anyone else apart from her unidentified "lawyers?" She could not be the second source because she was in DC.

Did you see the reporter state that she had spoken with the Iraqi government or the US military for comment?

This "reporting" might has well have been a press release from the unidentified "lawyers."
 

Thanks Robert... I found the section that deals with aliens, Sec. 7(e)(1) of the Act. There doesn't seem to be anything that would affect the courts' ability to hear cases filed by citizens, though. Also, the habeas provisions only apply from the date of enactment of the Act, which I believe would be when it's signed by the President, so it wouldn't affect this case.

I totally agree with you that the Act is irrelevant to the injustice of the situation... it's just that I'm a lawyer, so I'm interested in the legalisms :).
 

JT: I totally agree with you that the Act is irrelevant to the injustice of the situation... it's just that I'm a lawyer, so I'm interested in the legalisms :).

Well, that puts you in a different category than some lawyers who frequent this blog. ;) I'm a 2l in California, so I too have a vested interest in getting it right.

It was Bart whom I first saw argue the technically correct position that MCA is silent on citizen unlawful enemy combatants, and, again, I think that the literal reading would support him. But there is still the question of why the MCA doesn't then create only the class "alien unlawful enemy combatants" rather than, as is the case, creating the more broad category and then only treating of one sub-category. If you, like some, think in black and white, if you have no ability to look past expedient means of "getting the bad guys" to see the terrible dangers presented to all who would dissent, then you will be comfortable with trusting to extant law when dealing with "citizen unlawful enemy combatants." I, for one, think that safeguarding the institutions for which (according to the Rove/Cheney noise machine) we are supposedly hated is job one, and right now the greatest threat to those institutions is not from enemies without but rather from the enemy within, identified by Ike almost 50 years ago, and embodied by PNAC under whom we are rapidly losing all our moral capital---while at the same time making the foreign policy mistakes that ruined the USSR.

I'd love to continue the conversation off-blog; you can find my contact info in my blogger profile. Peace.
 

Robert Link:

All the MCA did was reverse the Rasul decision and restore the centuries old status quo ante which did not extend habeas review to alien enemy combatants.

This case concerns a US citizen held in a foreign country under the sentence of a foreign court.

US courts have habeas jurisdiction over US citizens detained overseas.

Where the jurisdiction of a US court falls short is in consideration of a foreign sentence. US courts simply do not have the jurisdiction to reverse this sentence.

If a US court had such jurisdiction, there are several thousand Americans held around the world under foreign sentences who would love to file habeas petitions.
 

PMS Chicago [to "Bart" DePalma]:

There doesn't seem to be any obfuscation of the source or any claim by the reporter to have been present for the trial itself. So, forgive me for asking, but what is your point and why are you trying so hard to make it?

It's called argumentum ad hominem One of "Bart"'s knee-jerk responses when any misbehaviour by the maladministration is exposed. As you can see by other comments, he also likes the "straw man" fallacy. He'll also use "fallacy of bifurcation", and "red herrings" ... whatever it takes to muddy the waters and attempt to "defend" his Lord Dubya from anything that might reflect badly on him....

Cheers,
 

This is not in any way similar to a case of rendition...

So says "Bart". But FWIW, "Bart" is of the opinion that rendition is just peachy-keen too....

Cheers,
 

"Bart" DePalma:

Perhaps this is old school, but when I worked on my college newspaper, the editor required that I have two source corroboration for anything I was reporting as a fact....

This is rich ... really rich. The network that "Bart" loves won a court decision stating that they may broadcast false information with impunity.

But FWIW, as pointed out, the reporter is reporting perfectly verifiable information: The allegations in the court papers -- and identifies them as such.

OTOH, "Bart"'s willing to opine as to what he thinks might be the case here sans any evidence to support his insinuations. And do it on a blog entry by a lawyer that has actually worked on this kind of stuff. Don't let it ever be said that RW shills like "Bart" aren't insufferable arrogant ... and obnoxious.

Cheers,
 

"Bart" DePalma said:

All the MCA did was reverse the Rasul decision...

"Bart" needs a spell-checker. It's spelled "Hamdan".

... restore the centuries old status quo ante which did not extend habeas review to alien enemy combatants.

"Bart" claimed this once before on Balkinization. But the cae he cited in support of this proposition was one that ruled that the alien petitioning for habeas would get his day in court.

Cheers,
 

Bart: This case concerns a US citizen held in a foreign country under the sentence of a foreign court.

A) Don't talk to me, please, unless you first are willing to track down my email and convince me in a private venue of a bona fide desire for legitimate discourse. At present you offend, especially after your bullying manner to Mary on another post. If I could filter you from my blog reader the way I can filter people from email I would have long since done so. Currently you are not filtered anywhere; so if you want to converse, email me. Otherwise don't expect responses even when you directly address me as you have done here.

B) This case is about a U.S. Citizen who was to be dismissed by an Iraqi judge, but who instead was sentenced to death on nothing more than the say so of the U.S. Army. Rather than it being a matter of us enforcing our rules of evidence and procedure on a land that doesn't observe them, this case is about your fellow servicemen dishonorably denying those rules to our own citizen in a land that was about to dimsiss on exactly those grounds. Your continued illegitimate, offtopic carpings are repugnant. And so I repeat my request: Please don't address me in this venue; I will be doing my best to ignore you.
 

So Bart claims to be a lawyer?

Yet he's unaware that habeas corpus (literally, "you have the body") is a petition to have a court require either release or justification by the agency that holds the prisoner, no matter for whom?

If a prisoner is held in a state or federal penitentiary because a court sentenced him to be there, the respondent is not the court that passed sentence, but the prison administration and its organizational superiors (from the warden on up to the attorney general).

In this case, the respondent would be the US military, on up to the Secretary of Defense, because they habeant corpus (have the body).

The respondent would not be the Iraqi court, because that court non habeat corpus (does not have the body).

Yet Bart smokescreens that habeas corpus can't apply because that court is foreign. Irrelevant. This is a US citizen held by US military, so a US court can accept a habeas corpus petition and require the US military holding him to respond.

What an amazing cloud of ink a squid spews out to obscure the clearest water. What a plethora of fallacies and obfuscations Bart is spewing here.
 

Correction/clarification:

["Bart" DePalma]: All the MCA did was reverse the Rasul decision...

[me, from above]: "Bart" needs a spell-checker. It's spelled "Hamdan".

OK, the MCA not only set out to "reverse" the Hamdan decision (actually, they can't "reverse" the case, but can moot it as precedent by changing the underlying substantive law) concerning legality of military commissions, but tucked in there were also jurisdiction-stripping provisions that were attempted previously in the DTA in the wake of Rasul. Arguably, the new provisions go beyond just getting around the specific DTA issues found in Rasul and attempt to finish off the death-knell to habeas corpus started in the TDA.

More to the point, the MCA doens't only "reverse" the Rasul decision. It most publicly was supposed to "reverse" the Hamdan case (AFAIK, the Dubya maladministration hasn't been selling the MCA on its vaunted and needed 'attribute' of suspending the Great Writ). In stating this, "Bart" is still incorrect.

Cheers,
 

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