Outsourcing the Death Penalty

On Tuesday morning, at the White House, your president will sign into law the Military Commissions Act of 2006 (S-3930) which passed the Senate by nearly a 2 to 1 margin. The so-called "torture bill" does not preclude "alternative interrogation techniques" that include sleep deprivation, and waterboarding, as well as gives the executive branch the right to decide what constitutes torture. Moreover, this new legislation empowers the executive branch with the ability to hold detainees indefinitely without charge, and without remedy from the courts, thereby defying habeas corpus.

It is epecially important to consider the new powers granted to the commander-in-chief, and the military, in light of revelations that an American citizen of Iraqi descent, 53 year old Mohammed Munaf, who was tried by an Iraqi court, and convicted of aiding and abetting the kidnapping, in 2005, of 3 Romanian journalists, has been sentenced to die along with five Iraqi co-defendants. (NYT)

As first reported by the New York Times, Mr. Munaf, who became an American citizen in 2000, went to Iraq in March, 2005, to work with the Romanian journalists in the capacity of translator and guide. And, when the Iraqis kidnapped the journalists, Munaf was also held for nearly two months. When the reporters were freed, in late May, Mr. Munaf was detained on the grounds that he was complicit in the kidnapping. According to government sources, Mr. Munaf is alleged to have confessed to cooking up the plot to kidnap the 3 journalists in Iraq, and pretending to be a victim. However, his attorney, Jonathan Hafetz, insists that the confession was made under duress, an allegation which especially resonates in light of the Military Commissions Act which is about to be signed into law.

The Iraqi-born American citizen is currently being held by the American government, and his lawyers filed papers, last week, to prevent his transfer to the Iraq "arguing that his death sentence undermined one of the United States government's principal arguments for transferring him, namely that he would be in no danger of physical abuse in Iraqi custody." (NYT) Indeed, it would be gross incompetence were his counsel not to insist on challenging his coerced confession, as well as demanding answers as to why Munaf, an American citizen, is being held, tried, convicted, and sentenced by a foreign country, regardless of whether it happens to be his native land.

Moreover, there appears to be some controversy surrounding Munaf's current whereabouts. Some members of the government claim he is at Camp Cropper near the Baghdad airport, but the Justice Department says he is being held by "multinational forces." In a similar case, a federal judge rejected the Justice Department's assertion that an American was being held by a "multinational force," and yet another court called department claims that prisoners are not being held by the U.S. military "legalistic fiction." But, the Justice Department seems to think that Mr. Munaf's fears of facing torture, and beatings, should he be turned over to the government he fled a half dozen years ago are "speculative and based on news reports." The implication, then, is that an American captive who has been sentenced to death by an Iraqi court, which was strongarmed by our own military, has been watching too many horror movies!

Apart from the obvious, troubling questions about who is now holding Mohammed Munaf, and where, there are even more disturbing concerns. First, is an American citizen entitled to be held, and tried, according to American law, and not Iraqi, in his home country, and with a jury of his peers? Also, if he is, in fact, guilty of the offense for which he was convicted, is being an accomplice to kidnapping, especially one in which the hostages survive, a capital offense? If so, is it not up to the American government to hold, try, and execute him? More importantly, how is it that officials with the United States military are empowered such that they get to intervene, and demand an Iraqi judge convict, and sentence to death an American citizen? Who pulls the strings, and who makes the ruling--a judge in an Iraqi court, or the Justice Department? Do we not make a mockery of Iraqi jurisprudence when American military brass is allowed to manipulate the outcome and sentences of those who come before Iraqi courts?

In light of the the signing by the president tomorrow of the Military Commissions Act, and other staggering legislation that expands the executive branch, and military powers, in this country, it must be asked how it is that the United States government not only gets to outsource torture, but now the death penalty, with impunity, and without challenge from Congress, or the Supreme Court.