A Law of Convenience

By Reynolds Holding

You could say President Bush's policy on international law is that he's against it--except when he's for it. Mostly, he's been against it. The Kyoto Protocol on reducing greenhouse gases? Not a chance. The International Criminal Court? Forget about it. The U.N. Convention Against Torture? Mere background noise for a White House committed to asserting the sovereignty of the U.S.

What, then, to make of the Administration's sudden respect for international law as applied to the war in Iraq? Two cases before a federal appeals court in Washington present the odd spectacle of Justice Department lawyers claiming that, legally speaking, the war is out of U.S. hands and in the U.N.'s lap.

At a glance, this maneuver seems downright hypocritical. We're talking about an Administration that initially claimed it didn't need further U.N. authorization to overthrow Saddam Hussein. But look more closely: what the two cases show is less Bush's `a la carte approach to international law than an Administration shrewdly exploiting global pressure to follow international law while advancing presidential power and, at the same time, trying to lend legitimacy to a failing Iraqi court system.

The first case, decided Feb. 9, involves Shawqi Ahmad Omar, 45, a Jordanian who became a U.S. citizen in 1986. Omar came to the U.S. on a student visa in 1979. He married his American wife in 1983, then served in the Minnesota National Guard for about 11 months. In 1995 he moved to Jordan with his wife and their five children.

Shortly after Saddam's ouster in 2003, Omar showed up in Iraq. He says he was looking for reconstruction work. Government lawyers say he was helping plan terrorist attacks. In 2004, American troops arrested Omar at his Baghdad home, allegedly finding guns and bomb parts.

U.S. soldiers held Omar for more than a year without charges or, he says, legal counsel, and they planned to transfer him to Iraqi courts. So Omar's wife and son filed for habeas corpus, a demand that a judge determine whether Omar's imprisonment was legal. But Justice Department lawyers came back with a startling response: the judge had no power over Omar's case. Why? Because the soldiers holding Omar weren't acting under U.S. law. As members of the Multi-National Force--Iraq, they operated under U.N. Security Council resolutions. And Supreme Court precedent bars U.S. courts from messing with rulings of an international authority.

The judge didn't buy this argument, and neither did the three-judge panel to which the government appealed. Omar was a U.S. citizen, the panel decided, and no matter their label, the soldiers holding him worked for the Pentagon. Besides, Omar had never been charged or convicted, so there were no rulings of a non-American authority to trip over. The U.S. courts could hear the case.

In the second suit, though, a trial judge reached the opposite conclusion. He ruled that U.S. soldiers were working for the multinational force when they captured American citizen and alleged kidnapper Mohammad Munaf in Iraq, so U.S. courts couldn't hear Munaf's habeas petition.

The Administration's legal arguments are hardly frivolous, but are they hypocritical? Sure, although they're also clever. They show the Bush Administration strengthening the President's power by exploiting U.N. backing for the war. Claiming to follow international law, the Administration now treats suspected terrorists in Iraq pretty much however it wants.

This approach squares with Administration policy on other "enemy combatants." Whether they are American citizens held in the U.S. or foreigners held at Guantanamo Bay, the White House has insisted that they fall beyond the jurisdiction of U.S. courts because the President has exclusive power to wage war and deny "combatants" the rights of ordinary citizens. The Supreme Court rejected that argument, although last Tuesday the Washington court of appeals upheld a law eliminating the right of foreign detainees at Guantanamo Bay to file for habeas corpus.

So how might the Justices react to claims that the courts get aced out because the Iraq war is an international enterprise? With Omar's and Munaf's cases probably headed for the high court, you can bet we'll find out soon. Keep in mind too that the Administration has more at stake here than its power. By steering these types of cases to Iraqi courts, it can help those courts gain legitimacy. The stronger its judiciary, the better Iraq's chances of surviving as a nation and the sooner the U.S.--to mix slogans from two unpopular wars--can stand down with honor.