Opinio Juris

Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee — Omar — relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

Munaf's lawyer, Joseph Margulies, said the Iraqi Court of Cassation reversed the conviction and sentence because it could not determine the role Munaf and other defendants played in the kidnapping from the court record. The Iraqi prosecutor supported the court's decision, Margulies said in an e-mail to The Associated Press.

Munaf is part of a pending Supreme Court case in which he and another naturalized American, Shawqi Omar, are trying to prevent the military from handing them over to the Iraqis.

The Bush administration argues that they should not be able to contest their pending transfers in U.S. courts since they are being held not by the United States, but by coalition forces in Iraq.

The administration, in its Supreme Court filing, said, "Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists."

Munaf has said his confession was coerced.

AMY GOODMAN: Scott Horton, I wanted to go back to another story, one that we have covered that hasn’t gotten a lot of attention: Mohammad Munaf. He is the Iraqi American who has just been sentenced to death also. Can you talk about his case?

SCOTT HORTON: Well, I was astounded by that, when I first heard a report about it... So I spoke with the defense counsel. I also spoke with a bailiff at the court about it, to find out what had happened in this proceeding. And what they all described — in fact, completely they all had exactly the same account of what happened — was shocking.

They say that he was brought into the courtroom, Mr. Munaf, by two American officers — one they described as, quote, “the general”; the other they described as a man named Lieutenant Pirone. He was brought before the court. The court had announced, prior to session, that reviewing the evidence of the case, he had concluded that he would dismiss the charges, that there were no substantial charges, and that at this hearing, that would be a conclusion to the affair, there would be a dismissal.

[snip]

SCOTT HORTON: ... And then, the account is that this American lieutenant stood up, began arguing very loudly with the judge, saying it was unacceptable that this man be dismissed, that he had to be convicted, and moreover that he had to receive the death sentence. And the American whipped out a piece of paper saying he was there speaking on behalf of the government of Romania and the government of Romania demanded the death sentence.

Afterwards, there was a private discussion, I’m told, between the Americans and the judge. The judge emerged from this ashen-faced, looking very upset, and then proceeded immediately to convict the man and sentence him to death.

And subsequently, the government of Romania reacted, saying they knew nothing about this proceeding and they certainly did not authorize an American officer to stand up in the court and demand the death sentence. In fact, the government of Romania does not endorse the death sentence. So there’s something very strange going on about this case.