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Judge rules detainee cannot be transferred to Iraqi custody
A federal judge ruled on Monday that the Bush administration could not transfer a United States citizen held by the military in Iraq to Iraqi civilian custody.In his ruling, Judge Ricardo M. Urbina of Federal District Court in Washington rejected arguments made last week by Justice Department lawyers that the courts had no jurisdiction because the man, Shawqi Ahmad Omar, was not technically in United States custody. In his ruling, Judge Urbina minimized as "legalistic" the government's argument that Mr. Omar was actually in the custody of the 27-nation Multi-National Force in Iraq, of which the United States was only a part. Mr. Omar, 44, a naturalized American citizen, was arrested in Baghdad over a year ago by military authorities. He has not been charged or allowed to consult with a lawyer. Lawyers who have brought a lawsuit on behalf of Mr. Omar's wife say that he went to Iraq as a businessman to obtain contracts in the reconstruction of the country. In its filing last week, the Justice Department gave a long list of particulars in an effort to show that Mr. Omar was, in fact, a senior associate and even a relative of Abu Musab al-Zarqawi, the leader of Al Qaeda in Iraq. Department officials said that he would be tried before the Iraqi criminal court on charges in connection with his activities, which they said included plans to use his fluency in English to help kidnap foreigners from hotels in Baghdad. The case has presented the courts with yet another set of legal questions about the judiciary's role in overseeing government actions connected to the conduct of war. The courts have already grappled with detentions of American citizens arrested inside the United States and those arrested on the battlefield in Afghanistan. Mr. Omar appears to be the first case of an American citizen apprehended in Iraq in connection with the insurgency there. Judge Urbina said he recognized the importance of the issues before him. "The court is mindful," he wrote, "that this case presents complex questions regarding the executive's power in enigmatic times, mindful of American citizens' due process rights and humbled by the gravity of the judiciary's role as arbiter of the two." He said that although the Justice Department had insisted that Mr. Omar was not in United States custody, his wife had received formal messages from United States consular officials in Baghdad saying that her husband was "under U.S. military care, custody and control." The Justice Department said last week that Judge Urbina should not intervene because Mr. Omar was not in the control of the United States and because the government had given assurances that he would not be transferred to Iraqi custody until after he was convicted of any crimes. Judge Urbina said the assurances did "little to ease the court's apprehension of irreparable injury" to Mr. Omar if the judge did not prohibit such a transfer in a formal ruling. Posted by: Dan Darling 2006-02-14 |
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