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A Day in Court Denied—A Commentary by Harold Hongju Koh

The following commentary was published in the Washington Post on March 31, 2008.

A Day in Court Denied
By Harold Hongju Koh

Last week, the Supreme Court heard a case from Shawqi Omar and Mohammad Munaf, two American citizens held in a U.S. prison for more than three years without access to lawyers or judges. Omar and Munaf are asking U.S. courts to examine the legality of their detention at the hands of U.S. troops in Iraq. Human rights groups agree that because the men are Sunni Muslims they will probably be tortured if they are handed over to Iraqi authorities. Whether U.S. courts can hear their legal challenge depends on whether the justices can tell green from blue.

As American citizens who claim that they are being held illegally, Omar and Munaf would ordinarily have an uncontested right to a writ of habeas corpus. Congress did not suspend that right by authorizing the invasion of Iraq. Our centuries-old tradition of habeas corpus teaches that access to courts is fundamental to the rule of law and individual rights. And U.S. courts have repeatedly looked past formalities -- most recently, the precise territorial status of Guantanamo Bay -- to exercise habeas jurisdiction to determine whether indefinite detention is lawful.

At oral argument last Tuesday, the Bush administration asserted that U.S. courts have no power to issue writs of habeas corpus when Americans are being detained by forces "under international authority." But as some justices recognized during oral argument, the U.S. solicitor general's position ignores operational realities. Diplomats and international lawyers commonly distinguish between "blue helmet" forces (those under active operational control of the United Nations) and "green helmet" forces (all others, especially those operating under effective national command and control). American forces in Iraq are traditional "green helmets" because they are part of a multilateral "coalition of the willing" that remains accountable, legally and politically, to domestic chains of command. Under international law, the test is simple: If the military forces holding Omar and Munaf are green, those military forces may be held to account for their treatment of U.S. citizens by U.S. courts.

American diplomats and officers know that when the United States enters a multinational force, our goal is to form arrangements that leave undisturbed U.S. chains of command and control, which include the normal habeas jurisdiction of American military and civilian courts. Former secretary of state Colin Powell, retired Gen. John Abizaid and Gen. David Petraeus, commander of the Multi-National Force-Iraq, all assured Congress that our forces in Iraq would be accountable only to U.S. military command, Congress and the American people. No Iraqi or U.N. body exercises authority over the detention of Omar and Munaf. The U.S. executive alone holds the power to order the release of these citizens, and that discretion must be overseen by a U.S. court to ensure that their continued detention and treatment remain lawful.

To evade judicial oversight, the administration invoked a 1948 decision where the Supreme Court declined to hear habeas claims from Japanese soldiers before an international tribunal, a far cry from denying such claims to U.S. citizens. And when Chief Justice John Roberts asked whether Omar and Munaf "are going to be released in a situation where you know that they won't receive anything resembling due process and will be subject to abuse," the government's lawyer gave a startling answer: "American citizens, when they go abroad, they have to take what they get."

The administration urged the court to defer to Iraqi authorities, a position The Post supported ["Imprisoned in Iraq," editorial, March 24]. But why defer blindly when doing so would expose American citizens to torture without judicial review? And the amicus brief presented by human rights organizations shows that as Sunni Muslims, Omar and Munaf face a real and substantial risk of torture upon surrender to Iraqi authorities. Our government has a duty under both international and U.S. law not to surrender any person to a foreign sovereign where there is a substantial risk of torture. Our Constitution mandates that our government not threaten any person's liberty without due process of law.

U.S. foreign policy interests are ill served when our government claims that our country's military personnel should answer to no law and that U.N. authorization constitutes valid ground for denying Americans their day in court and potentially exposing them to torture. In nearly identical circumstances, Britain's High Court recently held that a British court could inquire into the legality of the detention of a British citizen by British forces in Iraq because those troops, operating alongside American troops in the multinational force, are under their own country's effective command and control. If British courts are responsible for protecting the rights and well being of British citizens held by Britain's military in Iraq, why shouldn't American courts do the same?

The author, a former assistant secretary of state for human rights, is a professor of international law and dean of Yale Law School. He is counsel to a group of former diplomats in the Omar-Munaf case.