JURIST Special Guest Columnist Sharon Bradford Franklin, senior counsel at the Constitution Project, amicus in the US Supreme Court in support of habeas petitioners Mohammed Munaf and Shawqi Omar in Munaf v. Geren and Geren v. Omar, says that American citizens should be able to challenge their detentions in federal court whenever they are held in the custody of American officials…

The greatest threat to American liberty has long been that, in times of crisis, we are too willing to sacrifice the rights safeguarded by the Constitution. On March 25, as our military is engaged in multiple wars abroad against stateless enemies, the United States Supreme Court considers one such challenge when it hears oral arguments in Munaf v. Geren and Geren v. Omar, two cases that will assess America’s commitment to liberty through challenges to the detention of American citizens held in Iraq by U.S. authorities.

Separately detained by American-led military forces in Iraq, Mohammad Munaf and Shwaqi Omar are U.S. citizens who seek access to the basic procedural safeguards afforded by the Constitution — judicial review of their detention through the writ of habeas corpus. Together, both cases ask the Court to adopt a firm rule that allows an American citizen to challenge his or her detention in federal court whenever he or she is held in the custody of American officials.

Mohammad Munaf, an Iraqi-born, naturalized United States citizen, was arrested in Iraq in May 2005 and has spent almost three years in the custody of American military personnel without access to U.S. judicial review. Although, Mr. Munaf had been convicted by the Central Criminal Court of Iraq on charges of kidnapping and was sentenced in October 2006 to death by hanging, on February 29, 2008, the Iraqi Court of Cassation affirmed Mr. Munaf’s pleas of innocence and overturned his conviction. Shwaqi Omar, also a naturalized United States citizen, was arrested in Baghdad in 2004. Mr. Omar is currently imprisoned by American military forces and has been held at various prison facilities in Iraq, including Abu Ghraib. He is currently awaiting trial in the Iraqi court system.

Attorneys for the Bush Administration have argued that the American military personnel detaining Mr. Munaf and Mr. Omar are participating in a multi-national force, and that consequently, United States courts have no jurisdiction to consider the challenges to these detentions. But the executive branch’s position would create perverse incentives to detain American citizens under the auspices of multinational military operations as a way to circumvent judicial review. Contrary to the Administration’s arguments, U.S. authorities should not be permitted to indefinitely hold and interrogate American citizens simply because the arresting forces operate with a United Nations or similar international mandate. Indeed, such interpretations would allow the government to arrest American citizens around the world with impunity and deny them the due process rights afforded by their national judicial system simply by convening the arresting authority under an international charter.

One might imagine that as American citizens, these men would be assured of their constitutional rights and provided with a day in court to contest their detentions. But it appears that the government is determined to make habeas corpus review a casualty of its efforts to fight international terrorism. For the hundreds of foreign nationals being held at Guantanamo Bay, the government has attempted to repeal the right to habeas review through the Military Commissions Act (MCA) of 2006. Now, while the Supreme Court is still considering challenges to the habeas-stripping provision of the MCA, the Court must also evaluate the administration’s efforts in the Munaf and Omar cases to evade habeas review for United States citizens as well.

The government’s efforts to deny habeas corpus for “enemy combatants,” has already cost this country the moral high ground and international legitimacy in its fight against terrorism; denying habeas rights to our own citizens will only erode any remaining goodwill (both abroad and at home) and provide our enemies with yet another recruiting tool. This is why the independent Constitution Project has brought together a bipartisan coalition of policy experts, political leaders, and legal scholars, to call for the immediate restoration of habeas corpus rights for all detainees. We have also urged the Supreme Court to uphold constitutional safeguards and independent habeas review, and to ensure that the people caught up in America’s efforts to fight international terrorism are actually the terrorists we should rightfully detain.

Day in and day out, American military and law enforcement personnel forego their own safety and well being to guarantee the liberty and security of U.S. citizens around the world. As we argued in our brief before the Court, “a multinational-forces fig leaf” is not enough to hide our citizens from those liberties American men and women have fought and died to protect.

Sharon Bradford Franklin is senior counsel at the Constitution Project.
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