Balkinization  

Sunday, March 23, 2008

Thank Heavens for the Bulgarians in Iraq!

Marty Lederman

Deborah Pearlstein asks about the Munaf/Omar case being argued on Tuesday: "On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?"

Well, Deborah, if there's one principle the Bush Administration cares even more about than dissing international law, even more than making mincemeat of treaty obligations, even more than preserving unilateral executive prerogatives, it's making sure there is no judicial oversight over the President's conduct of war. (My favorite bit from John Yoo's most recent book is when he recounts (page 142) that in the weeks after September 11th, the Administration formed an inter-agency task force to study the issues related to detention and trial of al Qaeda members, and although there were many novel and contentious questions confronting the group, "[t]he one thing we all agreed on was that any detention facility should be located outside the United States" -- because then the courts would (they thought) lack jurisdiction over the detention facility. In other words, "the first thing we do, let's kill all the judges.")

In this case, the cleanest way to exclude the courts is to contend that -- surprise! -- it's not really the U.S. in Iraq who is detaining the U.S. citizens. What? No, it's not the U.S., acting pursuant to domestic law, but instead it's "the Multinational Force-Iraq" (MNF-I, for short). Why indulge such a fiction? Because the Administration hopes to take shelter in a cryptic 1948 decision, Hirota v. MacArthur, in which the Court held that federal courts lacked jurisdiction to review habeas petitions filed by certain Japanese nationals who were held by United States forces, acting as part of the Allied Powers. If Munaf and Omar were being held by the U.S. military, there's little doubt that they would have a right to petition for habeas; but according to the Administration, Hirota stands for the proposition that if the custodians are a multinational force of which U.S. armed forces are only one part, the habeas statute magically disappears, and the petitioners are flat out of luck.

That's why the Administration is at pains to argue that the U.S. is acting in Iraq, not on its own, but only as patr of a multinational force under the authority of . . . none other than the United Nations!: "The MNF-I operates in Iraq at the request of the Iraqi government and under United Nations (U.N.) Security Council resolutions authorizing it 'to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to' the resolutions. Pursuant to its U.N. mandate, the MNF-I operates under the 'unified command' of United States military officers, but it is legally distinct from the United States military, has its own insignia, and includes high-ranking officers from other nations (for example, the second in command, Lt. Gen. William Rollo, is a British officer)."

I don't think the Court would conclude that Hirota controls this case, even if the custodians of these detainees were part of a truly multinational force. (The 1948 case can be distinguished much more easily than, say, the Miller Second Amendment precedent, e.g., as involving the detention of non-citizens and, most importantly, as involving a collateral attack on the judgments of international tribunals -- neither of which is the case here.) But the fact of the matter is that it is, in fact, the United States military that is in control of these detainees. As the habeas petitioners stressed in their brief, U.S. military officials are the immediate and ultimate custodians of the detainees, and every person responsible for the detention of Omar and Munaf are Ameican officers, answerable only to other U.S. officers in our military's chain of command. One amicus even pointed out that the particular component of the MNF-I, Task Force, is exclusively American.

Not so!, says the SG: In a footnote in his reply brief, he represents, for the first time, and without any citation, that "Bulgarian soldiers are serving within that task force."

So, let's recap: If one's goal is to make sure that the military can detain anyone indefinitely without the prospect of any judicial review, first, urge the courts themselves to stay their hand, so that the detainees will come to believe that no judge will come to their aid and that all hope, and due process, is lost -- the better to interrogate them. When that does work, the second option is to move them to a law-free, court-free zone, such as GTMO. But when even that won't work, either because the courts will have none of it or, as here, because the detainees are U.S. citizens, just impress a couple of Bulgarians to help out with the detention! And voila -- no more habeas!

Hmm . . . I wonder what the Court will think of that argument?


Comments:

Hirota was convicted by a tribunal created under the authority of the occupation government of Japan, a government created by the joint decision of all Allied powers at Potsdam. SCOTUS decided that US courts had no review or appellate jurisdiction over a tribunal created under a multinational government any more than they do over decisions of a foreign sovereign government. Munaf was tried by the Central Criminal Courts of Iraq, and during the trial was held at the only prison in Iraq that provides ready access to the court buildings, Camp Cropper at the Baghdad Airport. That prison is guarded and administered by the US military as part of the MNF-I. Obviously Hirota does not apply here because the "multinational" part describes the entity running the prison, not as in Hirota the authority of the court conducting the trial.

This arrangement was worked out between the Iraqi government and the MNF-I/US military. There is a secure military corridor connecting the airport to the Green Zone, and US MPs can use that corridor to transport prisoners to court each morning and back each night. To try this from any other Iraqi prison would be suicide. Prisoners are transferred to Cropper when they are needed by either the investigatory or trial arms of the Central Courts. If a prisoner is found guilty and sentenced, then about two weeks later the court issues an order and the prisoner is transferred to the Interior Ministry to serve his sentence in an normal prison.

The warden of a prison, which accurately describes the role of US forces in this arrangement, does not have the power to admit, transfer, or release prisoners on his own. In this case, the court orders come exclusively from the Iraqi court.

This provides the background for the more detailed statement about custody in the DC District Court decision in this case:

"The United States has not asserted and does not profess to have the independent right to order that petitioner be moved, tried, punished, or released. Petitioner is thus under the actual, physical custody of MNF-I, a multinational entity separate and distinct from the United States or its army. He is in the constructive custody of the Republic of Iraq, which is seized of jurisdiction in the criminal case against him, and which controls his ultimate disposition. Petitioner thus has two custodians, one actual and the other constructive: MNF-I and the government of Iraq. Petitioner has not shown that either custodian is the equivalent of the United States for the purposes of habeas corpus jurisdiction."

There is nothing in this case that suggests a "no law zone." There certainly is no jurisdiction for US courts in an Iraqi criminal case, but that is also true of every other country on the planet. More importantly, Cropper cannot become a point of arbitrary US Executive authority because, at this time, the Iraqi courts control who goes into Cropper as well as who goes out.
 

These US citizens are in Iraq charged with crimes under Iraqi law and and are held under the jurisdiction of Iraqi courts.

Under what possible authority does a US court arrogate habeas corpus review of the detention of a prisoner of any nationality being held pursuant to foreign law in a foreign country?

The fact that US personnel are supervising the detention of the prisoners is of no import.

Imagine if you will that a Mexican company was running a private prison in the United States holding a Mexican national pursuant to a United States arrest warrant for a variety of felonies. How would the US court issuing the arrest warrant react to a Mexican court ordering the release of the Mexican murder suspect based on the fact that he was being held by a Mexican company?

This habeas petition is pure madness.
 

The fact that US personnel are supervising the detention of the prisoners is of no import.

Why? If the U.S. personnel are (allegedly) holding the person illegally, why should that not be a proper subject for a habeas corpus petition? That these U.S. personnel -- in their justification for said detention -- are citing some other authority is what should be of "no import" WRT the habeas petition. Once they get haled into court and are asked to explain the basis for their continued detention, they can then do their song and dance about being under the total and complete control of the Iraqi gummint and powerless to resist the orders of said gummint, and this is why they're holding these people ... and watch the judges laugh at them.

All that, of course, ignores the practical realities that this is a Iraqi gummint that we installed, bought, and paid for, and is as much a subsidiary of the United Corporations of America as is Halliburton/KBR ... despite their Cayman Island tax dodges.

Cheers,
 

Imagine if you will that a Mexican company was running a private prison in the United States....

Imagination and $4 will buy you a venti latte.

No such thing exists.

As for referring to the U.S. military as a "company", methinks "Bart"'s saying a bit too much....

Cheers,
 

Arne, do you have any opinion as to HG's argument?
 

Joe:

Arne, do you have any opinion as to HG's argument?

I thought I did describe my opinions a couple posts back. It applies to Howard's 'argument' as well:

[Howard Gilbert]: The warden of a prison, which accurately describes the role of US forces in this arrangement, does not have the power to admit, transfer, or release prisoners on his own. In this case, the court orders come exclusively from the Iraqi court.

Clear now?

Cheers,
 

Something similar has already reached the House of Lords in the UK. See:
Al-Jedda, R (on the application of ) v Secretary of State for Defence [2007] UKHL 58 (12 December 2007).

UK citizen held in Iraq by British forces acting under UN mandate. UK forces acting pursuant to UN Mandate - detention to be attributed to UN and remedy likewise at para 113:-

"In my view, the result is accordingly that, like Mr Saramati, following the decision of the Grand Chamber in Behrami, Mr Al-Jedda must find his protection from arbitrary detention in the commitment, given by Mr Powell to the Security Council, that members of the MNF would at all times act consistently with their obligations under the law of armed conflict, including the Geneva Conventions. It is for the Security Council, exerting its ultimate authority and exercising its ultimate right of control, to ensure that this commitment is fulfilled."
 

The British cases actually apply to the war. Munaf was a Romanian who was paid by a Romanian gangster in Roumania to kidnap a Romanian journalist. Iraq was just cover. So many people are kidnapped in Iraq, the authorities would be less likely to realize this was a specific targeted victim. The US (not Britain) guards Camp Cropper where every Iraqi pickpocket, robber, rapist, and murderer is held during trial. Their detention has nothing to do with international law, Geneva, the laws or war, or any of that other stuff that might apply to people the British capture during combat. If any Iraqi child molester happens to have US citizenship, then once he is transferred to Cropper for his CCCI trial, his lawyers can run to DC, petition for Habeas, and get an injunction preventing his trial. At least that is how it might be unless the Supreme Court puts a stop to this nonsense.

If they don't, then the MNF will have to find another country to provide soldiers to guard Cropper. Maybe they will turn it over to the British, and then they really will have the exact same situation.
 

Howard Gilbert:

If any Iraqi child molester happens to have US citizenship, then once he is transferred to Cropper for his CCCI trial, his lawyers can run to DC, petition for Habeas, and get an injunction preventing his trial. At least that is how it might be unless the Supreme Court puts a stop to this nonsense.

Or someone else does; and removes the U.S. military from the "command and control" (and premises) of the Iraqi regime, where they have no business playing cops and jailors for the (supposed) gummint of some other country. We're not Rent-a-Cop, you know....

Cheers,
 

So Arne, you are saying we really have a need for Blackwater in Iraq.
 

Howard Gilbert:

So Arne, you are saying we really have a need for Blackwater in Iraq.

No. We don't "need" any such thing. Nor should our soldiers be the Rent-A-Jailors of our installed Iraqi gummint (a/k/a "KBR Inc. with $10 bills for all" ... sheesh, they're cheap there; here we ask $1600 a head to STFU...)

Just to make it as clear as I can, Howard: We shouldn't be in Iraq in the first place. Problme solved. If they want to hire KBR, Blackwater, or the Chinese PLA, is their business....

Cheers,
 

I appreciate the reply A., though your past posts can apply to Bart too, but you continously reply to his specific posts.

This might be fun but it seems repetitive given you didn't reply to HG, esp. since not everyone reads all the posts esp. as they multiple like rabbits with all these guests.
 

Joe:

it seems repetitive given you didn't reply to HG.

I think I did. As long as the custodian (i.e., the U.S. military) is within the reach of U.S. courts, they need to answer as to the legality of any detentions that they are doing. Their defence might be, "Oh, we're under the command of a foreign gummint, and they're ordering us to keep these people", but that hardly answers the question as to whether such orders and such detention is in fact legal, and that is precisely the question the court should address in deciding as to whether to issue a writ for the petitioner. Why Howard thinks it is legal for foreign gummints to command that the U.S. military do something (that they can't even refuse) is beyond me. Do you think they could, if their laws allowed it, order the U.S. military to execute someone without trial?

Cheers,
 

Under what authority does the US Military detain anyone in Iraq? We are no longer at war or in occupation. The answer is that the sovereign government of Iraq granted the MNF the right to detain people posing a security threat in its letter requesting the UN Security Council to create the MNF.

[Now lets all admit that this Hirota thing is a bizarre argument that nobody would make except for some brain injury caused during a typical legal education. So it is fine if you assert MNF==USA for this argument.]

US forces are under US command and receive orders through the chain of command. Nobody is saying that anyone gives _military_ orders to US forces except for US officers. However, there are two types of Court Orders here, those issued by the CCCI (to transfer prisoners to and from Cropper) and those issued by US courts.

Since Iraq clearly DID NOT give the MNF/US any authority to second guess its court proceedings, to pass judgement on its other prisons, to obstruct justice, or to aid felons to escape justice, the US government (military, executive, and judicial) has a very limited role to play.

They can engage armed militia, and provide force protection. This allows them to shoot and kill the Shi'a militia who have been lobbing mortar rounds into the Green Zone for the last few days. If they capture one of these guys, then he can be classified as an enemy combatant and for a while he can be interned at Cropper under US authority. At some point, his case has to be referred to the Iraqi Justice Minister (the injunction froze Omar's case right in the middle of such a transition).

For the average bank robber who gets transferred into Cropper, the US MP unit guarding the prison takes all its military orders from its US chain of command, but they accept CCCI court orders when the prisoner comes in, when he is transported to and from the trial, and when he is transferred out if he is convicted.

The Iraqi courts cannot issue orders about how the prisoners are treated at Cropper. The US, however, cannot release accused felons whose cases are before the court. To do that would be obstruction of justice, aiding and abetting, and a bunch of other criminal things that the MNF/US is not authorized to do.

Just as each of us can decide when to get up and what to eat, but we are not allowed to rob a liquor store or kill our neighbor, so the US can pretty well run the prison as they see fit, but they can't let Omar or Munaf escape.

I don't just mean the US military. The US courts also don't have the authority to order the release of either accused felon. US forces must operate in a way that obeys both US and Iraqi law. If they can't do that, then they need to turn over their duties to forces of another country that can.

The transition is not that hard. Remember, the US court injunction prohibits US troops from turning over custody of these guys to the Iraqis, but no court can prevent the CCCI from issuing orders and sending officials to take custody of them away from US.

Of course, US forces have the physical ability to resist such an order, but no inclination to do so. The warden of a state penitentiary has guards with guns and the ability to forcibly resist a US Martial carrying an order from a US District Court to take custody of a prisoner, but he also is not inclined to start a war with the Federal government. Since the courts have not and cannot order US troops to resist Iraqi officials (only the Executive could issue such orders), Omar and Munaf can be easily removed from the table. Then if necessary, Cropper could be turned over to the Poles.

Here is the deal: If the US wants to be the World's Mother-In-Law, passing judgement on how everyone does their business, remarking loudly about how nobody is good enough to meet our standards, and bossing everyone around, then don't expect to be invited over for a long stay in anyone else's country. No matter how rich and powerful you are, at some point it is just not worth the aggravation.
 

The petitioner's attorney Margulies made a fool of himself today trying to make this meritless argument work by throwing everything he could against the wall and hoping something stuck. Even the Court liberals were not amused.

This could be a unanimous decision for the Government.
 

Howard Gilbert:

Under what authority does the US Military detain anyone in Iraq? We are no longer at war or in occupation. The answer is that the sovereign government of Iraq granted the MNF the right to detain people posing a security threat in its letter requesting the UN Security Council to create the MNF.

No. Your previous "argument" was not that the U.S. military was "granted" a "right" to do certain things there, but rather that the U.S. military was under the complete command and control of the Iraqi gummint, so that
they had no ability to release (or produce) the petitioners' bodies even if they wanted to.

Here it is, right up front:

The warden of a prison, which accurately describes the role of US forces in this arrangement, does not have the power to admit, transfer, or release prisoners on his own. In this case, the court orders come exclusively from the Iraqi court.

Cheers,
 

Howard Gilbert:

US forces must operate in a way that obeys both US and Iraqi law....

No. In the end, the law they must obey is U.S. law. For obvious reasons.

... If they can't do that, then they need to turn over their duties to forces of another country that can.

Indeed. If Iraqi law and U.S. law collide, then they can't very well serve both. Since their obligation is to respect U.S. law, then if Iraqi law runs contrary, the U.S. had no business placing its forces in such a no-win situation. They must leave immediately (or replace the Iraqi gummint with one more compliant and obsequious).

Cheers,
 

"... don't expect to be invited over for a long stay in anyone else's country..."

I guess I missed the invite. When'd that happen? How about Panama, Grenada, Nicaragua, Dominican Republic, Iran, Cuba, Philippines, etc.?

Cheers,
 

The US has the authority under the original security council resolution for "internment where this is necessary for imperative reasons of security." This does not in itself authorize detention of common criminals in Cropper during trial. A supplementary agreement was made between the Iraqi government and the MNF that US forces administering Cropper would hold accused criminals for the CCCI as well as security detainees.

This means that if today the US detains one of the militia forces firing mortars at the Green Zone, and then an Article 5 Tribunal finds that person to be an "enemy combatant", and that person is detained at Cropper, then the US has the authority to release that person at any time up to the point where the Justice Ministry begins criminal proceedings against him. Because if the person is only being held under the specific authority granted by Iraq through the Security Council resolution to the MNF and then passed on to the US, then he can also be freed under sole US authority.

However, a bank robber transferred into Cropper for trial cannot be free by the US, because he is being held under CCCI authority and the US cannot override that. For such prisoners, the US is simply the jailer.
 

A question, if any law professor types are still reading through these comments:

Why is there an assumption that custody is exclusive? Admittedly "joint custody" is a term normally found only in divorce, but there is a rather elaborate set of rules about primary and secondary custody when a prisoner is transferred between State and Federal jurisdictions for additional trials and to serve consecutive or concurrent sentences for Federal and State convictions in either Federal or State institutions.

So why is it that Munaf and Omar cannot be said to be in US custody (because of the unit controlling the prison), but also in MNF custody(because this unit is part of the MNF), and in Iraqi custody (because their cases are pending in the CCCI).

Then on its face the Habeas statue obviously applies, but then relief is limited. If the US court orders release from US custody, then just as Federal/State custody reverts to the other jurisdiction so in this case the prisoners would revert to MNF or CCCI custody. Iraq is a separate sovereign, and the MNF while not sovereign in its own right, operates in many ways like a sovereign (this is the real message of Hirota). Thus what has been previously argued as a threshold jurisdiction problem is really a limitation on relief.

A lot of the discussion seems to assume that "custody" implies a type of extraterritoriality. That is, while in US custody a prisoner has to be outside the jurisdiction of Iraq. There is no legal basis for this claim. Camp Cropper is on sovereign Iraqi soil. It is not part of the US, like a US Embassy. Therefore, US custody even if it exists cannot hide Munaf or Omar from concurrent Iraqi jurisdiction.
 

Howard Gilbert:

Then on its face the Habeas statue obviously applies, but then relief is limited. If the US court orders release from US custody, then just as Federal/State custody reverts to the other jurisdiction so in this case the prisoners would revert to MNF or CCCI custody. Iraq is a separate sovereign, and the MNF while not sovereign in its own right, operates in many ways like a sovereign (this is the real message of Hirota). Thus what has been previously argued as a threshold jurisdiction problem is really a limitation on relief.

That's pretty much what I was saying above. A habeas writ may not get the prisoner exactly what they want (and in fact, IIRC, for one of the petitioners, the absolute last thing they wanted was to be turned over to the Iraqis; they wanted the court to ask that they be let go elsewhere). But that doesn't mean that there is no U.S. judicial role for reviewing habeas petitions.

The maladministration is resisting this, of course, not so much for these people but rather because it has elsewhere tried to argue against habeas (or any judicial review of its actions, in any way, shape or form), and a loss here might chip at that rationale.

Cheers,
 

My second comment to Arne was in reference to his original comment on this thread -- to clarify, since he had some back/forth with HG by the time I wrote it.

As to his first comment, it did (indirectly) reply to HG's remarks to some degree (perhaps in large part, but probably not totally), which is fair enough. I think using Bart as the foil, as his wont, however is a bit problematic since so many don't take B. seriously generally.

To the degree he did reply to HG in the main, perhaps, it serves the basic purpose of making the counterargument, all the same.
 

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