Court to Hear Case of U.S. Citizens Held in Iraq

March 25, 2008— -- Two U.S. citizens detained by multinational forces in Iraq for alleged crimes committed on Iraqi soil are asking the U.S. Supreme Court to rule that the men can bring their cases to courts in the United States.

On Tuesday, lawyers for Mohammad Munaf and Shawqi Omar will argue that their clients fear being tortured if they are turned over to Iraqi authorities.

But the Bush administration claims that U.S. courts lack jurisdiction to review the cases of the two men because they are being held not by the U.S. government, but by a coalition of 27 countries, including the United States, that participate in the multinational force in Iraq under a United Nations security resolution.

The case marks the second time this term that the Supreme Court will examine the role of federal courts in legal battles stemming from the fight against terrorism. Justices are still considering a case heard earlier in the term about whether detainees held in Guantanamo Bay, Cuba, can bring their cases in U.S. Courts.

Lawyers for Munaf and Omar say the government is "profoundly mistaken" in its argument that the United States has no authority in the matter. In legal briefs, the lawyers write, "The U.S. military — not the U.N., not any coalition partner, and not Iraq — has plenary and exclusive control over their custody."

Joseph Margulies of Northwestern University Law School, who will argue the men's cases at the high court, writes, "Like Omar, Munaf is a Sunni Muslim who faces a grave risk of torture if transferred."

In court papers, the government responds that other nations would "inevitably take offense" if U.S. courts were to "assume the authority to review the determinations of international bodies." The government says that the multi-national force is seen as having a "distinct identity" from the forces of any particular nation.

Omar, an American Jordanian citizen, came to the United States as a 17-year-old and married an American woman in South Dakota. The couple has six children. Omar became a U.S. citizen in 1986 and served time in the National Guard. According to his lawyers, he moved to Iraq after the fall of Saddam Hussein in order to secure contracting work.