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Constitutional Law

ABA Files Amicus Brief Supporting Habeas Corpus in Iraq

Posted Feb 29, 2008 9:43 PM CDT
By Martha Neil

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Weighing in on an issue that has created concern among lawyers, journalists and human rights advocates, among others, the American Bar Association has filed a U.S. Supreme Court amicus brief on behalf of U.S. citizens arrested by the American military and held in Iraq without U.S. court proceedings.

At issue are the cases of Mohammad Munaf and Shawqi Ahmad Omar, who are being held for alleged participation in kidnapping plots. Munaf, who has already been tried by an Iraqi court, faces a death sentence if turned over to Iraqi authorities; Omar faces trial there.

Both seek, instead, to have their cases heard in federal court, but the government argues that because the U.S. military is part of coalition forces holding the two citizens, they are not subject to the jurisdiction of American courts, as an earlier ABAJournal.com post discusses.

However, the ABA argues, on habeas grounds, in a brief filed yesterday, that the two U.S. citizens should be heard in federal court, according to an ABA press release.

"Although there may be circumstances in which a citizen may be detained as any enemy combatant or transferred to the custody of a foreign government, due process must be provided to ensure that such detentions and transfers are according to law and not arbitrary. There can be no such inquiry without an opportunity for judicial inquiry into the process actually used," contends the summary section of the ABA's amicus curiae brief (PDF).

The Associated Press is also involved in the case, along with other media organizations.

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