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.

The government claims, however, that in 2004 he was captured after multinational forces raided his house in Baghdad and found that he was harboring an Iraqi insurgent and Jordanian jihadist fighters, and that he had weapons and explosive-making materials.

He is being held by the multinational forces, which want to turn him over to Iraqi courts to be charged. A lower court in Washington, D.C., has blocked that transfer pending the outcome of his challenge in the Supreme Court.

Munaf, who has dual Iraqi/American citizenship, emigrated from Baghdad in 1980. His lawyers claim he married a Romanian woman and then moved to New York and spent 15 years as a businessman. He became a U.S. citizen in 2000.

He says that in 2005, three Romanian journalists asked him to travel with them to Iraq as a paid translator.

Once in Iraq, Munaf and the journalists were kidnapped by a group called the Muadh Ibn Jabal Brigade. The group demanded a ransom for its captives as well as Romania's immediate withdrawal from Iraq.

The journalists and Munaf were released two months later, but Munaf was immediately arrested and charged with participating as an accomplice in the kidnapping.

Unlike Omar, Munaf was charged in an Iraqi court and sentenced to death for his alleged role in the kidnapping. Last month, that decision was overturned by an Iraqi appeals court because it couldn't pinpoint his role in the incident, and he remains in the custody of the multinational forces.

In an effort to provide further proof that their client was not involved with the kidnapping plot, Munaf's American lawyers have tracked down another American citizen, Roy Hallums Jr., who was held for a time with Munaf. Hallums, a former contractor who was held for 10 months until his rescue, told ABC News he was surprised to learn upon his release of the allegations that Munaf was working with the kidnappers. He said that they were both held under the same dismal circumstances.

"When I was rescued the FBI asked me if he was treated better,"says Hallums. "He was held with me in the same conditions. We were held in a cell-like room, in a room under the house. We were blindfolded and tied up for 23 hours a day. He lay beside me and ate the same food."

Hallums says he and Munaf would whisper to each other about their families.

At one point they even joked about the IRS and the fact that they would miss the traditional filing period. "We talked about the IRS because we were being held over April 11th and 12th. I said I hope the IRS understands we won't be able to get our taxes out. Mohammed said, 'it just shows you how much control they have over you.'"

Lawyers for both men condemn the government for holding the men for so long. "As it has during prior periods of public anxiety, the Executive Branch once again demands the power to detain its citizens unrestrained by judicial review," they say in court documents.

The case has drawn the interest of some former diplomats and national security experts who have filed briefs supporting Munaf and Omar, arguing that the government is wrong to argue that the action of the multi-national force "effectively immunizes" judicial review in U.S. courts.

They argue that the detainees' efforts to bring their cases to U.S. courts is "expected, legal and appropriate" and will in no way create a "dire foreign affairs crisis" that the government suggests between the United States and other nations participating in the multinational force in Iraq.

The case is expected to be decided by early summer.