Court Allows U.S.

Citizen to be Executed in Iraq

Mohammad Munaf is an American citizen. In 2005 he traveled to Iraq where, one

year later, he was convicted on kidnapping charges and sentenced to death by the Central
Criminal Court of Iraq. See, Munaf v. Green, WL 1029074 (D.C. Cir. 04/06/07)

Munaf is being held in the custody of the United States military which is “serving
as part of the Multi-National Force-Iraq.” He filed a petition for a writ of habeas corpus
in the District Court for the District of Columbia. Id. He named the Secretary of the Army
and others as respondents. He did not challenge his conviction. He challenged his
“custody” by the U.S. military.

Shortly after Munaf’s conviction, the D.C. district court ruled that it “lacked
jurisdiction” to entertain his habeas petition and summarily dismissed the application. Id.
Munaf appealed to the D.C. Circuit Court of Appeals.

The appeals court rejected the appeal, saying that, “constrained by precedent, we
hold that the district court does not have the power or authority to entertain Munaf’s
[habeas] petition …” Id.

In reaching its decision, the D.C. Circuit relied upon two nearly six decade old by
precedents: one by the U.S. Supreme Court and the other by its own court.

The Supreme Court decision was rendered in 1948. It dealt with Japanese citizens
in the wake of World War II trying to file writs of habeas corpus directly in the Supreme
Court. These foreign citizens were being held in custody in Japan after being tried by
military tribunals authorized by the late General Douglas McArthur “acting as the
Supreme Commander for the occupying Allied Forces.” See, Hirota v. McArthur, 338
U.S. 197, 198 (1948)

In a short per curiam decision, the Supreme Court held that the military tribunal
“[was] not a tribunal of the United States” and that “[u]nder the foregoing circumstances
the courts of the United States have no power or authority to review, to affirm, set aside
or annul the judgments and sentences imposed on these petitioners.” Id.

The D.C. Circuit precedent relied upon by the Munaf court was Flick v. Johnson,
174 F.2d 983 (D.C. Cir. 1949). The Flick decision involved a habeas corpus petition filed
by a German citizen held by American forces in Germany after being convicted by a
military tribunal. The Flick court turned to Hirota for instruction: “Was the court which
tried and sentenced Flick a tribunal of the United States? If it was not, no court in this
country has power or authority to review, affirm, set aside or annul the judgment and
sentence imposed on Flick.” Id., at 984. Like Hirota, the Flick decision held that the
military tribunal was not a U.S. Court, and, therefore, the district court lacked jurisdiction
to entertain Flick’s habeas petition. Id., at 986.
 Recently the D.C. Circuit departed from Hirota and Flick in the case of Omar v.
Harvey, 479 F.3d 1 (D.C. Cir. 2007). In Omar a habeas corpus petition was filed on
behalf of Omar, an American citizen also being held by the United States military in Iraq
as part of the Multi-National Force-Iraq. Id., at 3. But unlike the petitioners in Hirota and
Flick, Omar had neither been charged nor convicted by a non-United States court. The
D.C. Circuit in Munaf said that “’we distinguish Hirota and Flick on this basis’ and went
on to hold that the district court had jurisdiction to hear Omar’s habeas claim.” Munaf,
supra., WL 1029074 at 1.

The D.C. Circuit, however, did not make the same distinction between Hirota and
Flick and Munaf’s case. It said these two cases “controlled” in the Munaf case. “The
MNF-I is a multinational force, authorized by the United Nations Security Council, that
operates in Iraq in coordination with the Iraqi government. The CCCI is an Iraqi criminal
court of nationwide jurisdiction and is administered by the government of Iraq; it is not a
tribunal of the United States. Accordingly, the district court had no power or authority to
hear the case.” Id. at 2.

Attorneys for Munaf argued that Hirota (and by extension Flick) did not control
because he is a U.S. citizen and that citizenship is “a head of jurisdiction and a ground of
protection.” See, Johnson v. Eisentrager, 339 U.S. 763, 769 (1950). The attorneys
reasoned that as long as a U.S. citizen is held in the physical custody of U.S. officials
habeas corpus is available per U.S. Supreme Court case law. See, Braden v. 30th Judicial
Circuit, 410 U.S. 484, 495 (1973).

The Munaf attorneys conceded that an American held in the custody of a foreign
government does not have a right to habeas corpus. See, U.S. ex rel. Keefe v. Dulles, 222
F.2d 390, 391-92 (D.C. Cir. 1954)[no habeas jurisdiction over American held in French
prison by French jailers]. But the attorneys argued that since American custodians answer
solely to United States law, they are subject to the custody restraints of the writ of habeas
corpus.

The D.C. Circuit rejected these arguments, saying: “ … Munaf’s citizenship does
not take this case out of the ambit of Hirota and Flick. Hirota did not suggest any
distinction between citizens and non-citizens who were held abroad pursuant to the
judgment of a non-U.S. tribunal. Indeed, Justice Douglas wrote a separate opinion
criticizing the Hirota majority for seeming to foreclose habeas review even for American
citizens held in such circumstances … In Omar, we held that ‘the critical factor in Hirota
was the petitioners’ convictions by an international tribunal’ … We explained that,
because Hirota ‘articulates no general legal principle at all,’ the decision is controlling as
a matter of precedent if the circumstances important to the Court’s decision are present
here … as in Hirota, Munaf’s case involves an international force, detention overseas,
and a conviction by a non-U.S. court. As we noted in Omar, conducting habeas
proceedings in the face of such a conviction risks judicial second-guessing of a non-U.S.
court’s judgments and sentences ,,,” Id., at 2.
 The real issue in Munaf, as it has become in most terrorism cases today, is the
power of the Executive Branch to wage a unilateral “war on terrorism.” The Government
in Munaf argued that the President had the unlimited authority to enter into unfettered
agreements with foreign countries – agreements that bestows upon the U.S. military an
unrestrained “independent authority” to detain American citizens like Munaf, as well as
non-citizens, in a custody beyond the protection of the U.S. constitution and this nation’s
laws.

In effect, the President of the United States with the informal “war on terror” has
assumed the powers of a King. Historically, in our country the authority of any Federal
official, even the President, emanated exclusively from the Constitution. For example, the
U.S. Supreme Court has held that “no agreement with a foreign nation cannot confer
power on the Congress, or any other branch of Government, which is free from the
[Constitution’s] restraints.” See, Reid v. Covert, 357 U.S. 1, 5-6, 16 (1957).

Through the exclusive authority of its Executive Branch, the United States now
holds non-citizens in secret and non-secret prisons throughout the world. These prisoners,
who have become known as “enemy combatants” or “detainees,” do not enjoy any
constitutional protections, civil liberties, and benefits of any laws of the United States
under the Congressional Detainees Fair Treatment Act and Military Commission Act.
Under the quasi-official license of these Acts, these prisoners are routinely subjected to
physical torture, psychological abuse, and mental duress at the hands of their military
custodians and government interrogators without any judicial remedy.

This presidential “war on terror” around the world has created a “war of
ideology” within every branch of government in this country, including the U.S. Supreme
Court. In 2004 the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) held that
our government can never maintain an “unchecked system of detention.” Id., at 530
(plurality opinion), The Congress responded with the Military Commission Act in 2006
which granted the Executive Branch the absolute authority to maintain “unchecked
system[s] of detention” anywhere in the world - and by refusing to review earlier this
year the D.C. Circuit’s decision in Boumediene, the Supreme Court lent credence to the
dangerous notion that the President of the United States can wage the “war on terror” in
any manner he sees fit, unconstrained by the Constitution and the laws of the United
States.

The Government of Iraq is now free to execute Mohammad Munaf, an American

citizen. What will happen when the Iraqi government, or any other government, captures,
tries, convicts, and sentences to death an American citizen with a non-Muslim name?