U.S. Citizens on Foreign Soil – What Protections by U.S. Courts?
With the H1-b filing season behind us, it will be nice to be able to spend some time on some other interesting areas of immigration law—there’s no shortage.
Last week, there was an interesting case heard by the Supreme Court (Munaf v. Geren Secretary of the Army and Omar v. Geren, Secretary of the Army) involving two U.S. citizens who are currently being held by Coalition forces in Iraq who the U.S. wants to hand over to the Iraqi government for trial and, depending on the trial’s outcome, punishment. The two men, both Sunni Muslims, voluntarily went to Iraq for employment and they are accused of having committed crimes there – kidnapping for one and assisting Iraqi insurgents in a kidnapping for the other. Both men have filed a habeas corpus petition asking that the U.S. courts order that they not be transferred to Iraqi officials.
Certainly, as a general proposition, once these two U.S. citizens stepped foot on Iraqi soil, they made themselves subject to Iraqi law. Whenever any American travels overseas, that person is subject to that country’s laws just as a visitor to the U.S. is subject to our laws. This is basic international law.
Of course, there are exceptions. Diplomats travel under an immunity from local jurisdiction and military personnel are generally immune from another country’s laws assuming that there is a status-of-forces agreement that controls how host countries can apply their laws to U.S. citizens. Under Iraqi law, there are even greater immunities: for non-Iraqi military personnel and certain civilian security professionals.
The problem for these two U.S. citizens is that none of these immunities apply. They are both private U.S. citizens who voluntarily traveled to Iraq and who, allegedly, committed crimes. The Supreme Court has already said, in Wilson v. Girard (1957), that Americans who travel overseas can be transferred to local authorities for criminal trial. That case involved an American soldier who sued to avoid being transferred to Japanese officials to face criminal charges.
The Bush Administration is arguing that U.S. courts do not have jurisdiction to entertain the men’s respective habeas corpus petitions because, it claims, the two citizens are not under U.S. control—they are under the Coalition's authority, an international authority. If they were under U.S. control, habeas corpus rights would clearly apply.
But this argument ignores reality . . . . .
and some of the Justices seemed to recognize this as evidenced by their questioning at oral argument. U.S. forces are clearly operating under a U.S. chain of command in Iraq, not an international chain of command. Technically, they are being held by the Multinational Force-Iraq that is staffed with soldiers from different countries and tasked with helping the Iraqi government in law enforcement matters. But Multinational Force-Iraq is dominated and controlled by the U.S. So, it seems, it’s the U.S. military that is holding the two men, not an international force, and the treatment of the two men is subject to U.S. law, including the right to habeas corpus.
The obvious concern of the two Sunni Muslims is that they will be tortured if they are released to the Iraqi authorities. Chief Justice Roberts asked the government’s attorney whether the two men “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 answer: “American citizens, when they go abroad, they have to take what they get."
True, Americans need to understand that if they commit crimes in a foreign land, they are (and should be) subject to that country’s laws and that country’s definition of due process even when those laws may seem unreasonable and unduly harsh by our standards. But it’s something else when it’s generally agreed that the U.S. citizen will not be afforded any due process at all, no judicial review and will, in all likelihood, be tortured and perhaps killed in that foreign country. The government’s attorney disagreed that mistreatment or worse is inevitable if the two men are turned over to the Iraqi authorities and some have argued that the U.S. should turn over the two men to the Iraqis while somehow “insuring” that they two men are treated fairly.
Presumably, the thinking here is that by turning over the men, we would be allowing the Iraqi legal system to work and, if necessary, we could step in to micromanage how the two are then treated by that system. I’m not sure exactly how that would work once they’re turned over and it seems contradictory to insist that the Iraqi system be allowed to work—but only for so long as the U.S. thinks it’s acting fairly.
By the way, Britain’s High Court recently decided a similar case, holding that British courts do have jurisdiction to judge the legality of the detention of a British citizen being held in Iraq by British forces on the grounds that those forces are under the effective control of Great Britain, not a multinational body.
A decision in the case is expected in the summer.
