Citizens Detained in Iraq Seek Rehearing

Attorneys for two U.S. citizens held by the American-led forces in Iraq have asked the Court to reconsider part of a ruling issued last month finding that federal courts could not block their transfer to Iraqi authorities for criminal proceedings.

The petition for rehearing (available here), filed on Monday and noted this morning on the Court’s online docket, argues the Court’s unanimous decision in the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394) was based on the unproven assumption that the government of Iraq wishes, as the government contended, to actually prosecute either of the petitioners currently in U.S. custody – Shaqwi Omar, whom the military determined should be referred for prosecution, and Mohammad Munaf, who was once convicted but subsequently acquitted by Iraqi courts.

“Simply put, the record does not show that Iraqi authorities intend to investigate or prosecute Mr. Omar, or that they still intend to proceed with criminal proceedings against Mr. Munaf,” says the rehearing petition, filed by Northwestern Law Professor Joseph Marguiles, who argued the case in March. “The record shows only that the U.S. Government wishes to be rid of its own citizen detainees — and to avoid federal habeas review — by moving them to another sovereign’s custody.”

In March 2004, U.S. military forces arrested Omar at his Baghdad home. Declaring him an “enemy combatant” linked to a terrorist network, a military panel voted to turn him over to Iraqi courts for investigation and possible prosecution under Iraqi law. Last month’s Supreme Court ruling overturned a decision of two federal courts in Washington to bar the transfer.

According to Monday’s filing, however, “[t]here is no evidence at all in the record that Iraq wishes to prosecute Mr. Omar. Nothing in the record even hints at an Iraqi interest in either investigation or prosecution. Rather, it shows only that the United Stats wants to deposit Mr. Omar in an Iraqi jail.”

In March 2005, Munaf was one of six individuals convicted in a kidnap-for-hire plot of three Romanian journalists. All defendants were sentenced to death by hanging. Munaf remained in U.S. military custody prior to being turned over to Iraqi authorities. But in February, an Iraqi appellate court overturned the conviction and sentence, stating it had not determined what if role he played in the crimes.

The rehearing petition states the Court’s opinion “draws the unwarranted inference the Iraqi courts have an interest in a new prosecution of Mr. Munaf.  Rather than reaching that premature conclusion, the Court should have remanded back to the district court to ascertain whether [his] detention, in fact, remains ‘an integral part of the Iraqi system of criminal justice’ (if it ever was), or, as petitioner asserts, a case of U.S. officials holding a U.S. citizen without sufficient cause and without any real Iraqi interest.”

Alternatively, the petition seeks rehearing “in light of the wider systemic effects” of the Court’s opinion on habeas rights of U.S. citizens held by American officials abroad. Specifically, the petition argues the Court’s ruling “imperils the liberty of citizen journalists, aid workers, and the dependents of military personnel — all of whom voluntarily travel to foreign countries, and all of whom may well find themselves in the custody of their government and threatened with transfers to the territorial sovereign.”

Maintaining the Court has long protected U.S. citizens from unconstitutional actions overseas, the filing says the Justices “should not cease to do so now simply because the Government has found an ally willing to shield it from judicial review.”