Brief Filed in Munaf v. Geren and Geren v. Omar Habeas Cases

For Immediate Release:
February 21, 2008

Contact:
Mike Webb, 212–998–6746

Aziz Huq, 202–441–9684

Jonathan Hafetz, 917–355–6896

Fundamental Legal Rights in Jeopardy in Two Cases

That Will Be Heard by the Supreme Court Next Month

Today the Brennan Center for Justice, along with the MacArthur Center for Justice, filed a brief with the Supreme Court seeking judicial review and a writ of habeas corpus for two U.S. citizens detained in Iraq and held by U.S. personnel for the past two to three years.  The combined cases, Munaf v. Geren and Geren v. Omar, present a stark constitutional question: do Americans seized and held abroad have the same fundamental rights as other U.S. citizens?

The cases will be heard on March 25 and the Supreme Court will decide two issues:  First, whether military officials have the power to seize and detain a U.S. citizen, without judicial review, based on their claim that they are “agents” of a multinational entity.  And second, do those officials then have free rein to hand over an American to another government likely to torture and kill him.

“The government here is asking for a free pass to infringe the core liberties of U.S. citizens,” said Aziz Huq, director of the Brennan Center’s Liberty and National Security project.  ”But there is no loophole to fundamental freedoms simply because the government claims to act in concert with other countries." 

Shawqi Omar is an American citizen who was arrested by U.S. forces in Iraq in 2004, transferred between U.S. bases in the Middle East and tortured.  The government argued that because the Iraq war was under the banner of the United Nations, U.S. courts did not have jurisdiction to rule on the case. 

Mohammad Munaf is being held by U.S. forces in Iraq and was tried and convicted by an Iraqi court for his alleged role in a kidnap-for-hire case.  Munaf will be executed if U.S. forces turn him over to the Iraqi government.  The U.S. government contends U.S. courts do not have jurisdiction in this matter.

They have both been labeled as “security internees,” a term that remains vague and not clearly defined.

The Brennan Center filed habeas corpus petitions for Messrs. Omar and Munaf in 2005 and 2006 respectively.  Until January 2008, the month after the Supreme Court decided to hear the case, Omar and Munaf were denied access to their American counsel.  And the government still argues that the cases should be dismissed.

“The government’s position threatens to undo long established precedent protecting American citizens from the arbitrary and lawless exercise of executive power,” said Brennan Center attorney Jonathan Hafetz.  “The fundamental rights of Americans must be upheld no matter where they are.”

The cases come on the heels of the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld, which reaffirmed that U.S. citizens seized by the U.S. military overseas may challenge their detention in federal court.  Omar and Munaf ask only for the chance to present that challenge.  By denying them this chance, the government is trying to roll back the Hamdi judgment of just four years ago.

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