- The Washington Times - Wednesday, March 26, 2008

Several Supreme Court justices expressed strong doubts yesterday about extending the reach of U.S. courts into Iraq to stop the transfer of two American citizens into Iraqi control.

The skepticism by Chief Justice John G. Roberts Jr. and others came after a lawyer representing the Bush administration argued that U.S. courts cannot intervene in the cases of Mohammad Munaf and Shawqi Omar.

Mr. Omar is charged with assisting a terrorist network and Mr. Munaf with setting up the 2005 kidnapping of three Romanian journalists in Baghdad. Both proclaim their innocence and both are Sunni Muslims who say they will be tortured if turned over to the Iraqi government.

The Bush administration’s legal position is that the two men are being held by the multinational force in Iraq, of which the U.S. contingent is only a part.

“The government of Iraq, like all sovereign nations, has a sovereign right and jurisdiction to try and punish individuals, including American citizens,” said Deputy Solicitor General Gregory Garre.

Joseph Margulies, the lawyer for Mr. Omar and Mr. Munaf, said the two are under the control of the U.S. military and should have access to U.S. courts.

Mr. Margulies told the justices that “the buck stops with the United States government when it comes to these detainees.”

The chief justice pointed out that the U.S. military in Iraq has thousands of foreign nationals under its control, raising the possibility that by Mr. Margulies’s logic, they also should be given access to U.S. courts.

But they aren’t U.S. citizens, Mr. Margulies replied.

Mr. Garre said 20,000 people are in custody in Iraq and that 2,000 of them have been transferred to Iraqi control.

Responding to concerns expressed by Justice Samuel A. Alito Jr., Mr. Margulies said providing Mr. Munaf and Mr. Omar the rights to which they are entitled as U.S. citizens would not affect the other 20,000 people in custody in Iraq.

“There is no floodgates problem” because of their citizenship and other safeguards, said Mr. Margulies.

Justice John Paul Stevens rejected Mr. Margulies’s argument of a parallel between the cases of Mr. Omar and Mr. Munaf and that of Yaser Esam Hamdi, a U.S. citizen seized on the Afghanistan battlefield and later detained at a naval brig in Charleston, S.C.

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