No Comment — March 26, 2008, 8:11 am

Judicial Bamboozlement

In England of the seventeenth century, the Stuart monarchs gradually found the court system to be entirely too much of a bother. Of course, they would pick the judges and keep them in line with promises of royal favor or the reverse, and they developed the cajoling of juries into a high art form, often enough promising retribution against jurors who failed to render the desired verdict. But the bottom line was that this legal system was simply too unpredictable. Why, it actually dispensed justice in some cases. And that was decidedly not what the monarch desired—or to put it more in the framework of the times, it was the King’s justice that they were after, a particular and personal flavor. So some cures were crafted. One was the use of military tribunals to try cases—tribunals which immediately dispensed the justice that the sovereign desired. And another was the practice of putting prisoners, especially those in political cases, on boats and shipping them off to places where the hated writs of the English courts, and particularly the writ most in disfavor, habeas corpus, did not run—to the Channel Islands, the Isle of Man, and even on occasion to America.

Much of the reign of the Bush dynasty has been an exercise in reliving the mistakes of the seventeenth century, and in short order we have seen Bush resort to each of the techniques of the Stuart monarchs so close to his heart. And now we leap forward some three hundred and fifty years to discover that we have an Administration intent on dispensing not American justice, but Bush justice–and that it’s best doing this with a sleight of hand worthy of a Stuart monarch.

We start once more with the fertile and perverse legal imagination of John Yoo. Among the early memoranda to come out of the Office of Legal Counsel under Yoo were a series devoted to evading the jurisdiction of U.S. courts, and particularly avoiding the reach of the dreaded writ of habeas corpus. As Yoo later put it in his book:

[t]he one thing we all agreed on was that any detention facility should be located outside the United States.

The goal of these exercises was to put the prisoners directly under the power of President Bush, and subject to whatever treatment he chose to mete out. In another series of infamous memoranda, of course, Yoo explored the parameters of that treatment, namely, the president’s prerogative to torture.

Yesterday, the Supreme Court heard two related cases which arose from this practice. Writing in the New York Times, Linda Greenhouse describes the cases:

the question argued on Tuesday was one of federal court jurisdiction: whether the courts can hear challenges brought by two men, both United States citizens, to the validity of their detention and proposed transfer. The two, Shawqi Ahmad Omar and Mohammad Munaf, are both civilians and are being held at Camp Cropper, an Army-run detention center near the Baghdad airport.

The question proved complex, as suggested by the fact that two different panels of the federal appeals court here had reached opposite conclusions in reviewing petitions for habeas corpus filed by the two men. One panel refused to intervene on behalf of Mr. Munaf. Although his conviction and death sentence on kidnapping charges was overturned several weeks ago by the Central Criminal Court of Iraq, he may face further charges.

The other panel upheld an injunction preventing Mr. Omar’s transfer to the Iraqi authorities. He was captured by the United States military at his home in Baghdad and was determined to be a “security internee” who harbored insurgent and jihadist fighters at his home. The Bush administration appealed that ruling to the Supreme Court, which consolidated the two cases, Geren v. Omar, No. 07-394, and Munaf v. Geren, No. 06-1666, for a single argument.

The position of the Bush Administration rests on a rather absurd fiction. U.S. courts have no business meddling in these cases, we are told, because the two Americans, who are in the custody of American forces and housed in an American military prison in Camp Cropper, near Baghdad, are not really held by the United States, but rather by the Multinational Forces-Iraq (MNF-I), an “international military organization.”

In this case, however, it’s not the legal issues that catch attention so much as the perversely contrived presentation of facts. The Bush Administration feels that it is entitled to concoct whatever facts suit it and to present them to the Supreme Court as the binding truth. And watching the Bush Justice Department in action on this case, one comes quickly to understand why a large number of attorneys in the Justice Department’s appeals division have refused to accept assignment to craft briefs and arguments in the Administration’s cases dealings with war on terror detainees. I think there’s a simple reason that accounts for this mass desertion under fire: those lawyers take their duty not to lie to the courts seriously–unlike the lawyers who present and argue these cases, who are happy to fabricate whatever absurdities they feel will serve them and then spout them before the Court.

In this case, we learn that the prisoners are actually held under the authority of the Iraqi state, and that they are in the custody of MNF-I, an international military force. MNF-I, according to Deputy Solicitor General Gregory Garre, is not under the authority and control of the United States, but rather of the United Nations:

The United Nations controls the strings and the source and the scope of international authority. . .

Moreover, the Solicitor General, in his brief, points out that “Bulgarian soldiers are serving within the task force.”

I think I can understand the principles in play here very well. It’s as if King George, thanks to his trusty Hanoverian and Hessian units, had declared himself the head of an international expeditionary force in America in order to defeat the jurisdiction of the English courts. (And of course, as Edmund Burke reminds us in his famous “Letter to the Sheriffs of Bristol” of 1777, King George and his government engaged in just these sorts of legal maneuvers for just the same purposes: to deny the authority of the normal courts and to block the use of the writ of habeas corpus. Burke called it what it was, an act of cowardice and tyranny.)

Back in the spring of 2006, I represented a major American broadcast news service and a journalist in their employ who was falsely imprisoned by U.S. Forces in Iraq for a period of one year. Ultimately, I secured his release following proceedings in the Central Criminal Court of Iraq (CCCI) in which the court concluded that the charges leveled against him were bogus and probably fabricated.

I spent a good part of the spring dealing with proceedings within the CCCI, with TF-134, which maintained the prison and discussing the legal status of the detention. I met and discussed this situation repeatedly with then-Major General Jack Gardner (since promoted to lieutenant general and made head of the Allied Land Component in Heidelberg), his legal advisors and public affairs officer. The mission and operation of TF-134 as I then learned it was nothing like the creature that appears all fluffed up and ready to do judicial battle in the Bush Administration’s briefs and arguments submitted in the Munaf and Omar cases.

The two key points that the Bush Administration advances here are:

  • it is subject to the Iraqi legal system and to the Iraqi courts; and

  • it is under the authority of the United Nations.

Both of these points are at odds with reality and the actual operation of TF-134. But of course, the Solicitor General’s brief has no room for actual facts as opposed to convenient inventions presented as facts.

First, TF-134 is an American operation, run to American standards, which is by-and-large (and particularly as compared with the reality of conditions in prisons run by the Government of Iraq) a very good thing. It is incorporated and under MNF-I, which is also an American operation. Indeed, with the departure of more than two-thirds of the initial “Force of the Billing,” MNF-I is even more overwhelmingly an American operation today than at any point in its operation. Indeed, documents passed between TF-134 and the Iraqi Government routinely ignore the fiction of MNF-I, and refer to the detention operation as an American operation, just as officials of the Iraqi Ministry of Justice do with some regularity.

Does this mean that the prisoners have the protections guaranteed them by the Iraqi Constitution and Iraqi law? No. Iraqi law guarantees a detainee an arraignment and appearance before a magistrate within two weeks of initial detention, and periodically thereafter. In the U.S. view, these rights are inapplicable to detainees in its custody and control, because they are “security detainees,” even though it is anticipated that most will face criminal charges before the specially crafted CCCI system.

But, I pointed out, Security Council Resolution 1546, which authorized U.S. peacekeeping operations on Iraqi territory following the creation of the interim Iraqi government, is explicit in requiring that detention operations be maintained consistently with Iraqi law, the Iraqi constitution, and international legal standards, including the Geneva Conventions. Secretary of State Colin Powell, in accepting this resolution for the United States, claimed the right to operate a security detention system, but acknowledged that it would be subject to the limitations of the Resolution’s mandate.

But, as General Gardner explained to me, the U.S. Forces in Iraq have a “different understanding” of the resolution and its meaning. They understand all the Iraqi legal protections to collapse once the notion of “security detention” is invoked. It’s essentially a system which the President of the United States is free to make up as he goes along. And he is entitled to evade the oversight of U.S. courts by claiming to be MNF-I, and thus beyond their control.

Actually, the United Nations has not been silent about this. I spoke with the Secretary General’s representative in Iraq and others, and all noted exasperation over the U.S. Forces’ legal treatment of detainees and refusal to grant legal rights.

In fact, the United Nations put its disagreement with U.S. Forces on these points on the record, issuing a report about two weeks ago. Particularly noteworthy here are paragraphs 63 through 73, in which we learn that the detainees are systematically denied their Iraqi legal rights, access to Iraqi courts. Indeed, the United Nations report notes a substantial number of cases in which detainees were acquitted or their release was directed by Iraqi courts, and they continue to be held.

That also matches my experience—I heard of a number of such cases as I was in Baghdad, and Gen. Gardner’s staff judge advocate told me that TF-134’s position was that it was under no obligation to release a prisoner “simply” because he had been acquitted after a trial in an Iraqi court.

In the courtroom in Washington, however, an alternate reality has been carefully crafted. A major part of the Bush Administration position in the two cases argued before the Supreme Court rests on the notion that Americans who drift into Iraq are subject to the Iraqi legal system and Iraqi courts.

In one key exchange, Chief Justice Roberts—surely one of the safest votes on the Court for any national security proposition put forward by the Bush Administration, however preposterous—asked whether American citizens should be released from American custody to foreign courts where “they won’t receive anything resembling due process and will be subject to abuse.” Garre responded to this with the assertion that when Americans venture abroad, “they have to take what they get.”

The utter absurdity of this entire exchange is demonstrated by the fact that Munaf and Omar would come before CCCI. This is not just any foreign court. It is a special American-crafted, funded and run kangaroo court that operates, under American protection and overt influence, in a bubble next to the Green Zone.

As a lawyer admitted to practice in the CCCI, who has actually argued a case there, met with the judges and prosecutors, and observed a number of other cases, I can speak about what transpires there from experience. Cases in the CCCI are regularly prosecuted by U.S. Forces in Iraq, with U.S. JAG officers presenting the case for the prosecution–not Iraqi Government prosecutors. Indeed, in the Iraqi inquisitorial system, there are not really any “prosecutors” as Americans know them. Rather it is the responsibility of the investigating judge to get to the bottom of the facts. As shown by the shockingly abusive case involving Associated Press photographer Bilal Hussein, tremendous efforts are undertaken to block American lawyers from appearing for the defense, however, and reporters and observers are frequently excluded from the court when U.S. military present their cases.

The Munaf case is a another good example. In it, an American JAG officer purported to prosecute Munaf, seeking the death penalty, and claiming the authority of the Romanian Government in doing so. The Romanian Government later vehemently denied that it ever authorized this, and reaffirmed its opposition to the death penalty. But the strange dealings of the Munaf case are par for the course in any CCCI case which U.S. Forces take an interest.

Judges at CCCI told me that they were dependent upon the favor and approval of U.S. Forces, and particularly of TF-134 and its commander. In fact, judges who incur the disfavor of the Americans are very quickly reassigned out of the CCCI, a move which some view as the equivalent of a death sentence.

Similarly, judges at CCCI are dependent upon the U.S. Forces for their security, and are often given housing in the Green Zone.

I have also spoken with a number of figures in the Iraqi Government who complain about the functioning of the CCCI, the unseemliness of U.S. military dominance of the court, and the refusal of U.S. forces to account for persons held in “security detention.”

The CCCI is therefore viewed, with solid basis, as an American judicial puppet theater in Baghdad. And yet this is what Garre calls “taking what they get.”

In the end, the Bush Administration is not simply making a farce of a foreign legal system under its influence. It is also attempting to make a farce out of the United States Supreme Court. And the question is whether the nine justices will let them get away with it.

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