WASHINGTON (AP) _ The Bush administration told a seemingly receptive Supreme Court on Tuesday that the U.S. military should be allowed to turn over two Americans to the Iraqi government for criminal proceedings.
For now, defense lawyers have successfully stopped the transfers of Shawqi Omar, who allegedly assisted a terrorist network, and Mohammad Munaf, who allegedly set up the 2005 kidnapping of three Romanian journalists in Baghdad.
Omar and Munaf proclaim their innocence and both are Sunni Muslims who say they will be tortured if they end up in Iraqi hands.
"American citizens, when they go abroad, they have to take what they get," said Deputy Attorney General Gregory Garre.
Lawyers for the two say they are under the U.S. military's control, while the Bush administration says they are held by the multinational force in Iraq, of which the U.S. contingent is only a part.
"The buck stops with the United States government when it comes to these detainees," said Joseph Margulies, the lawyer for Omar and Munaf.
Chief Justice John Roberts pointed out that the U.S. military in Iraq has thousands of foreign citizens under its control, raising the possibility that by Margulies' logic, they also should be given access to U.S. courts.
But they aren't U.S. citizens, Margulies replied.
Garre said that 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 Alito, Margulies said providing Munaf and 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 Margulies.
Justice John Paul Stevens rejected Margulies' argument drawing a parallel between the cases of Omar and 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.
"A very different place of detention," Stevens said.
The Supreme Court gave Hamdi the right to use U.S. courts to challenge his detention and the Bush administration eventually released him.
Much of the argument before the justices turned on a 1948 Supreme Court case in which Japanese citizens unsuccessfully sought to challenge their sentences by a military tribunal in Japan. The court said the tribunal's authority came from Allied forces and not the United States.
While seeming reluctant to have U.S. courts get involved, at least one justice appeared somewhat dismissive of the Bush administration's argument.
"In real world terms, isn't it the case that they are under United States authority?" asked Justice David Souter. "You've got an American commander, you've straight-line authority right through."
Ultimately, Garre replied, "the United Nations controls the strings and the source and the scope of international authority."
Munaf was convicted by an Iraqi court and sentenced to death. The conviction has since been thrown out, but the legal issue is unchanged for the Supreme Court because Munaf is in the custody of the U.S. military.
Omar, who also holds Jordanian citizenship, is accused of being a senior associate of the late insurgent leader Abu Musab al-Zarqawi. The U.S. government said Omar was harboring an Iraqi insurgent and four Jordanian fighters at the time of his arrest in October 2004 and also had bomb-making materials. U.S. courts have blocked his transfer.
The consolidated custody cases are Munaf v. Geren, 06-1666, and Geren v. Omar, 07-394.
Copyright 2008 The Associated Press.