Wednesday, February 08, 2006

U.S. "Enemy Combatant" May Be Transferred to Iraqis

The U.S. military may transfer custody of U.S. citizen "enemy combatant" to the Iraqi government, according to this AP article. The article suggests that it would be the first time that a U.S. citizen "enemy combatant" is transferred to Iraq, although it would not be the first time that a U.S. citizen enemy combatant has been transferred to a foreign government. Yaser Hamdi, for instance, was apparently transferred to the Saudi Arabian government last year.

This case reminds me of the usefulness of the concept of an "enemy combatant" - a non-uniformed soldier using tactics in violation of the customary laws of war against U.S. military personnel. At least in this context, this doesn't seem like some crazy idea cooked up by the U.S government. One can imagine its practical usage - especially on the battlefield. The individual in question here is alleged to be a Al Qaeda operative in Iraq.

But U.S. courts' skepticism of the enemy combatant concept is probably why the U.S. is transferring him to Iraq. Leaving him in U.S. custody means that he could bring a habeas action, which, even if limited under recent legislation, could still complicate U.S. military policy. It will be interesting to see if the federal courts are willing to reach out and block this transfer and future transfers of U.S. citizen enemy combatants.


Blogger Bobby Chesney said...

Omar v. Harvey is a very important and very interesting case, particularly in light of the argument that the government made in its opposition brief on Tuesday. In short, the government contends that Omar, though in physical terms in the custody of the U.S. military, is in the legal custody not of the U.S. but of the Multi-National Force-Iraq. This, the brief contends, means that the detention is not subject to habeas review. It will be very interesting to see what Judge Urbina does with this, particularly in light of Judge Bates's ruling last year in Abu Ali (rejecting argument that habeas petition had to be dismissed where petitioner was held by Saudi authorities, where petitioner alleged U.S. control of the detention). Note, too, that Graham-Levin (section 1005 of the DTA) does not address habeas jurisdiction by military detainees away outside of GTMO. I've been thinking that this omission was a bit surprising, but perhaps the MNF-I argument helps to explain it.

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