Curious About Munaf

No answers to questions by Eric and Deborah , but more questions about Munaf : There’s something curious about the United States’ position in Munaf v. Geren , on which the Supreme Court will hear oral argument Tuesday morning.

Petitioning for a writ of habeas are Mohammad Munaf and Shawqi Ahmad Omar, both U.S. citizens who also hold citizenship in a second country and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the “threshold jurisdictional question” in the case whether

United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.

Interesting question, particularly given that the 1949 per curiam judgment in Hirota . There, as I discussed a while back, out of nine justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East , the Tokyo-based counterpart to the Nuremberg trials. The court in Hirota deemed the IMTFE a “military tribunal” established by U.S. Gen. Douglas MacArthur “as the agent of the Allied Powers,” so that “the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed.” (p. 17)

But here’s what is curious: In Munaf the U.S. government contends that U.S. troops that are detaining petitioners do not hold them “’in custody under or by color of the authority of the United States,’ ” as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners “pursuant to international authority”; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)

The claim suggests a break in the U.S. chain of command a cession of U.S. sovereignty that’s at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just two examples, on June 5, 2004, Colin Powell, then the United States’ Secretary of State, wrote in a letter to Lauro L. Baja Jr., then president of the U.N. Security Council: “[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel. … The existing framework governing these matters is sufficient for these purposes.” Likewise, in a July 1, 2004, U.S. Department of Defense briefing , Brigadier General David Rodriguez, deputy director for operations, J-3, Joint Staff, said with regard to the MNF:

But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.

Though the clash in claims may not stop the government as a matter of law, I am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.

( Cross-posted at IntLawGrrls blog.)