By Jac Wilder VerSteeg
Original article available here.
Should the U.S. military come to the rescue of an American citizen who is in danger of being railroaded and executed by a foreign country that has a flawed judicial system?
The question evokes images worthy of Hollywood. The American languishes in a stinking cell. Given today's favorite villains, his cruel jailers would be from some corrupt Islamic nation. U.S. forces, working bravely and flawlessly, would extricate the American from his cell and whisk him back home, where he would become an inspirational symbol contrasting the legal protections Americans enjoy compared with the abuses all too commonly suffered abroad.
There is a case something like the one described, which puts the U.S. military on the spot for saving an American prisoner. However, it isn't a job for the Green Berets or Navy Seals. No special unit is needed to snatch the American from foreign custody. The American military already has custody of the U.S. citizen. The only thing needed is for them not to hand over the American to the foreign court that wants to hang him.
But, wouldn't you know it, surrendering the American is precisely what the Bush administration has been trying to do - and still is trying to do, even though dramatic developments last week showed that the condemned American likely was railroaded.
The case in question involves Mohammad Munaf, who was born in Iraq but became a U.S. citizen in 2000. Five years later, he was back in Iraq working as a guide and translator for three Romanian journalists. Mr. Munaf and the Romanians were kidnapped and held for two months. They were released, but Mr. Munaf was taken into custody by the U.S. military and accused of complicity in the kidnapping.
At that point, Mr. Munaf began demanding that, as an American citizen being held by American soldiers, he had a right to appeal to U.S. courts for legal protections. But the Bush administration argued that, since he was being held by coalition forces outside the United States, he had no such rights and should be turned over to Iraqi authorities.
Since then, U.S. courts have been grinding away to answer the question of their own jurisdiction. One judge ruled against Mr. Munaf. The Supreme Court is supposed to hear his case this month.
In the meantime, Iraqi courts did some grinding away of their own. In 2006, they convicted Mr. Munaf, sentenced him to death and sought custody to carry out the sentence. At least, that was the situation until last week. On Friday, one of Mr. Munaf's lawyers announced that an Iraqi appeals court had reversed Mr. Munaf's conviction and overturned his death sentence.
Why? Because the Iraqi appeals court found that the evidence used to convict Mr. Munaf - a confession and testimony from witnesses - did not exist. According to the Associated Press, the Iraqi prosecutor agreed that the conviction and sentence should be overturned.
The Brennan Center for Justice at New York University, The Rutherford Institute out of Charlottesville, Va., former U.S. diplomats and several news organizations all have filed briefs opposing the Bush administration's claims. The right of Americans in the custody of Americans to appeal to American courts is sacrosanct, they say. News organizations point out that journalists covering a war could be seized by the military hiding behind coalition status and held indefinitely or turned over to foreign courts, stifling coverage of the war.
In this case, as in so many others, the Bush administration frantically wishes to avoid neutral oversight of its decisions about who can be held and for how long. It wants the freedom to turn captives over to foreign governments for torture or execution. In high-profile cases, such as the rendition of Canadian Maher Arar - sent by the CIA to be tortured in Syria - and now Mr. Munaf, the victims now have turned out to be not guilty.
Granted, U.S. courts are not infallible, as the parade of people released from prison and Death Row by DNA evidence shows. And the Iraqi courts, in Mr. Munaf's case, arrived with a last-minute save. But the cases show that the Supreme Court in Mr. Munaf's case needs to reject the Bush administration's claims and come across with its own last-minute save of some basic constitutional rights.