Opinio Juris

I'm sorry, I just can't let this one go:

Picture, if you will, a tree-lined plaza in Baghdad's International Village, flanked by fashion boutiques, swanky cafes, and shiny glass office towers. Nearby a golf course nestles agreeably, where a chip over the water to the final green is but a prelude to cocktails in the club house and a soothing massage in a luxury hotel, which would not look out of place in Sydney harbour. Then, as twilight falls, a pre-prandial stroll, perhaps, amid the cool of the Tigris Riverfront Park, where the peace is broken only by the soulful cries of egrets fishing.

Improbable though it all may seem, this is how some imaginative types in the US military are envisaging the future of Baghdad's Green Zone, the much-pummelled redoubt of the Iraqi capital where a bunker shot has until now had very different connotations.

A $5bn (£2.5bn) tourism and development scheme for the Green Zone being hatched by the Pentagon and an international investment consortium would give the heavily fortified area on the banks of the Tigris a "dream" makeover that will become a magnet for Iraqis, tourists, business people and investors. About half of the area is now occupied by coalition forces, the US state department or private foreign companies.

The US military released the first tentative artists' impression yesterday. An army source said the barbed wire, concrete blast barriers and checkpoints that currently disfigure the 5 sq mile area would be replaced by shopping malls, hotels, elegant apartment blocks and leisure parks. "This is at the end of the day an Iraqi-owned area and we will give it back to them with added value," said the source, who requested anonymity.

Potential investors are being encouraged to take a punt that years ahead, Baghdad's fortunes may mirror former war-torn cities such as Sarajevo and Beirut that have risen from the ashes.

Marriott International has already signed a deal to build a hotel in the Green Zone, according to Navy Captain Thomas Karnowski, the chief US liaison. Also in the pipeline is a possible $1bn investment from MBI International, a hotel and resorts specialist led by Saudi sheikh, Mohamed Bin Issa Al Jaber.

One Los Angeles-based firm, C3, has said it wants to build an amusement park on the Green Zone's outskirts. As part of the first phase, a skateboard park is due to open this summer.

The best thing about the "artist's rendering" is the complete absence of background. Wonder why that is?

As a brief follow-up to Sonya's post, it's worth noting that the IHT began trying Tariq Aziz, Saddam's deputy prime minister and the highest ranking Christian in Saddam's regime, earlier this week:

Iraq's former deputy prime minister, Tariq Aziz, was known as the 'Ace of Spades' in the United States' deck of playing cards of Iraq's most wanted.

But he was better-known as the regime's moderate public face, who fronted the cameras in the days before the US invasion with his trademark black-rimmed glasses and Cuban cigars.

Aziz has now gone on trial in Iraq on genocide charges, accused of approving the execution of scores of business people while the country was under economic sanctions.

He has been in US custody for the last five years and if he is found guilty, he could face death by hanging.

The 72-year-old entered the courtroom with a walking stick, looking frail and weak.

He and seven others are on trial for executing 42 Baghdad merchants in 1992, who were accused of raising food prices at a time when Iraq was facing stiff UN economic sanctions.

[snip]

Judge Rahim Hassan al-U'kaili says Aziz and his seven co-defendants will be charged with war crimes, genocide and crimes against humanity.

"Tariq Aziz didn't have any role in the issue of the execution of merchants," he said.

"However, his participation in the issuance of two resolutions which stipulated the following - each one who monopolises foodstuffs for commercial purposes should be executed, and his portable and non-portable properties should be confiscated."

Although I haven't examined the case against Aziz in any detail, the genocide charges are puzzling. The victims were merchants executed (almost certainly illegally) for price-gouging. So where is the specific intent to destroy a racial, ethnic, national, or religious group?

The following article was written by Sonya Sceats, Associate Fellow in International Law at Chatham House in London. It first appeared in The World Today, Chatham House's journal. I am reprinting it here for our readers who are interested in the more recent activities of the Iraqi High Tribunal.

Rowdy sessions of the Iraq High Tribunal attracted sensational daily news coverage while Saddam Hussein was being tried. However, following his grim execution in December 2006, coverage all but evaporated. The foreign press and most western monitors packed their bags and left, and television reporting in Iraq dwindled. Now even the United States Department of Justice, which initially provided key financial and political support, is quietly withdrawing its advisers.

So what is happening at the Tribunal and why are the Americans pulling out?

The departure of the American lawyers is hugely significant. In practical terms, it means that crucial technical assistance for the judges and prosecutors will be lost. From a more general perspective, it marks a watershed in the gradual turning inwards of the Iraqi High Tribunal. The desire of the Iraqis to try Saddam Hussein and other senior Ba’athists themselves, and their insistence on making the death penalty available, means that international involvement has always been low. But until recently, the presence of international advisers, and, in the courtroom, journalists and observers, ensured some connection with the outside world.

DYSFUNCTIONAL

According to insiders, the Tribunal is in a state of internal turmoil. Morale among the judges is said to be very low. For example, the judges who heard the case relating to widespread attacks on Kurdish villages in 1998 are reportedly disillusioned by ongoing political wrangling over the execution warrants for Ali Hassan al-Majid, better known as Chemical Ali, and two others found guilty – former defence minister Sultan Hashem Ahmed and Hussein Rashid Mohammed, a deputy chief of staff in the army. Powerful interests are resisting the execution of Sultan Hashem in particular because he is widely respected in the military and in Mosul, where his tribe is fighting Al Qaeda, and there are fears his execution will inflame the insurgency.

It seems likely that the US Department of Justice is withdrawing in a bid to disassociate itself from the high levels of dysfunction. Infighting and absenteeism among the judges have both become rife. This has caused a sharp drop in productivity which will in turn almost certainly delay the commencement of important new trials. Meanwhile the loss of international interest may have compounded the problems. With the departure of the press and most independent monitors, vital forms of external scrutiny have been lost.

GENOCIDE CASE IGNORED

The Tribunal has concluded two trials and is nearing the end of a third. The opening case concerning the massacre of 148 villagers in Dujail was the subject of intense scrutiny by the media, non-governmental organisations (NGOs), academics, and others. Key talking points included the courtroom antics of Saddam and his co-defendants and frequent boycotts by their lawyers, the challenging security context – several staff and defence lawyers were killed while the trial was in progress – and the important question of whether it was fair. Unfortunately, subsequent cases, involving crimes of far greater magnitude, have barely been reported or discussed. The Tribunal’s second, and arguably most important, trial concerned the series of chemical and other attacks launched by Iraqi armed forced on thousands of Kurdish villages in 1998. An estimated 180,000 people lost their lives in what came to be known as the ‘Anfal’ – spoils of war – campaign. Between August 2006 and June 2007, six leaders of the attacks including al-Majid were tried for genocide, crimes against humanity, and war crimes.

Charges were also brought against Saddam, who attended early sessions, but were dropped following his execution. Undoubtedly, his absence was the primary reason for such patchy news coverage. This is deeply regrettable because, in contrast to the Dujail killings, a relatively minor incident, the Anfal campaign was an iconic symbol of the barbarity of the Ba’athist regime. It is therefore understandable that many Kurds feel bitter that Saddam escaped accountability for these atrocities because of a prosecution strategy which prioritised Dujail to secure a ‘quick win’.

Lack of interest also means that ongoing problems and some modest improvements since the Dujail hearing have not been properly acknowledged. Low points included the removal of the first presiding judge, at the request of the Iraqi prime minister’s office, after he stated in court that Saddam was ‘not a dictator’, and another boycott by defence lawyers.

According to the International Center for Transitional Justice, the lone NGO monitor for the Anfal trial, defendants faced many challenges including impossibly vague charges, and a Tribunal failure to accommodate defence testimony; less than ten defence witnesses were heard.

On a brighter note, the proceedings were generally less chaotic. The quality of legal argument also improved – the prosecution made a strong case for the command responsibility of most defendants, proper defences were mounted and the Tribunal demonstrated increased competence in international criminal law.

From a legal perspective, the most important feature of the trial is the genocide verdict. This crime is notoriously difficult to prosecute because of the need to demonstrate a specific intent to destroy, in whole or part, the persecuted group, and this remains one of the few times it has been proved in court. The proceedings were closely followed by Iraqi Kurds. When the verdicts were announced – all but one of the defendants were found guilty – Kurds took to the streets in northern Iraq to celebrate. A decision to confiscate the assets of those convicted should mean their personal wealth is redistributed to the Kurdish communities they sought to destroy.

UPRISINGS TRIAL

A third trial, relating to the brutal suppression of mass Shi’a uprisings in the aftermath of the 1991 Gulf War, is expected to finish in the next month or two. Fifteen defendants including al-Majid are standing trial. According to observers, order has finally been achieved in the courtroom – it is even said that the presiding judge considers al-Majid a ‘model defendant’ because he asks legal questions and is generally courteous; a far cry from his behaviour during the Anfal proceedings. However, discipline in the courtroom is not equivalent to fairness and deep concerns remain over the conduct of this trial. In particular, its hasty commencement last August before investigations were complete, and the Tribunal’s refusal to delay proceedings, has clearly prejudiced the defence.

There has also been criticism of a decision to narrow the scope of the trial to events in Amara and Basra. This was clearly pragmatic – it was thought that more than a hundred defendants would be tried if all the related uprisings were included – however, it means linkage evidence necessary to establish command responsibility may not be presented.

At least four other cases are almost ready. They relate to the infamous gassing of Kurdish villagers in Halabja; the expulsion of Fayli (Shi’a) Kurds in the 1980s; the destruction of marshes relied upon by the Marsh Arabs; and the killing of eleven merchants. The last of these is politically significant because, although the crimes were comparatively small scale, the victims were Sunni and the Tribunal hopes this will counter Sunni perceptions that it is a tool of Shi’a and Kurdish vengeance.

SERIOUS FLAWS

There is no doubt that the Dujail trial was seriously marred by political meddling and a range of fair trial failings, including inadequate time for defendants to prepare their cases, and a lack of rigour in verifying the documentary evidence crucial to establish the guilt of Saddam and his co-accused.

However, the trial was not the complete train wreck many predicted. Most would agree that the standard of justice was an improvement on trials in the mainstream Iraqi criminal justice system. And despite enormous security risks, dozens of witnesses turned up to testify, allowing a detailed record of the killings to emerge.

Since Dujail, there have been some signs of progress. The judges have achieved authority in the courtroom and their skill in trying complex international crimes seems to have improved. And yet the remaining problems are grave. Political interference appears to be continuing – judges have been leant on by politicians to drop cases and initiate others for political purposes, and the chief prosecutor, Jaffar al-Moussawi, was recently removed after criticising the Tribunal’s ‘financial and ethical corruption’.

Many will maintain that Saddam and other senior Ba’athists should have been tried instead by an ad hoc international tribunal like those set up for the former Yugoslavia and Rwanda, however there was no support for this within the United Nations. And, the International Criminal Court cannot try crimes committed before 1 July 2002. Hence a more realistic criticism is that there should have been more international involvement in this Iraqi-led process.

While the original statute for the Tribunal allowed the appointment of international judges, the second statute restricted this to cases involving states; none have been heard yet, despite pressure from Iran and Kuwait. International advisers are also permitted but opposition to the death penalty by European and other countries means almost all such advisers have been American. The departure now of all but four of the American lawyers is merely the latest step towards the Tribunal’s international isolation.

The predictions are that the Tribunal will be wound down in the next year or two. Let us hope that the remaining trials receive the public attention they clearly need, from both human rights monitors and the international media.

Finally, some good news out of Iraq:

An Iraqi judicial committee has dismissed terrorism-related allegations against Associated Press photographer Bilal Hussein and ordered him released nearly two years after he was detained by the U.S. military.

Hussein, 36, remained in custody Wednesday at Camp Cropper, a U.S. detention facility near Baghdad's airport.

A decision by a four-judge panel said Hussein's case falls under a new amnesty law. It ordered Iraqi courts to "cease legal proceedings" and ruled that Hussein should be "immediately" released unless other accusations are pending.

The U.S. military referred the case in December to an investigating judge, who reviewed the evidence and submitted his findings to the Central Criminal Court of Iraq to determine whether the case should go to trial.

In February, however, parliament approved a law providing amnesty to those held for insurgency-related offenses — including detainees such as Hussein who have never been convicted.

The committee from the Iraqi Federal Appeals Court ruled Monday that allegations against Hussein were covered by the Anti-Terrorist Law and were subject to the amnesty law.

I have previously discussed the Bush administration's shameful attempts to engineer Hussein's conviction, as has — in far more depth — Scott Horton. It will be interesting to see what the administration does now; as the article notes, Hussein is actually in U.S. military custody. As the AP article notes, it may not let him go without a fight:

U.S. military authorities have said a U.N. Security Council mandate allows them to retain custody of a detainee they believe is a security risk even if an Iraqi judicial body has ordered that prisoner freed. The U.N. mandate is due to expire at the end of this year.

Also, the amnesty committee's ruling on Hussein may not cover a separate allegation that has been raised in connection with the case.

[snip]

In response to a question from the AP, Pentagon spokesman Bryan Whitman said it "will be up to officials in Iraq" on whether to release Hussein. The decision, he said, will be "based upon their assessment as to whether he remains a threat."

Under Iraq's 2-month-old amnesty law, a grant of amnesty effectively closes a case and does not assume guilt of the accused.

Hussein has been held by the U.S. military since being detained by Marines on April 12, 2006, in Ramadi, about 70 miles west of Baghdad. Throughout his incarceration, he has maintained he is innocent and was only doing the work of a professional news photographer in a war zone.

The amnesty committee's decision covers various allegations by the U.S. military against Hussein, including claims he was in possession of bomb-making material, conspired with insurgents to take photographs synchronized with an explosion and offered to secure a forged ID for a terrorist evading capture by the military.

The committee may still be reviewing a separate allegation that Hussein had contacts with the kidnappers of an Italian citizen, Salvatore Santoro, whose body was photographed by Hussein in December 2004 with two masked insurgents standing over Santoro with guns.

[snip]

The amnesty committee — or any Iraqi institution — cannot force the U.S. military to release or turn over any of the estimated 23,000 detainees it holds in Iraq. But a provision in the amnesty law states that the Iraqi government "is committed to take the necessary measures to move the arrested people" from U.S. control.

More later, as additional information becomes available...

UPDATE: Scott Horton provides some background on the separate allegation involving Santoro, which turns out -- not surprisingly -- to be as baseless as the other ones:

Other than the terrorism charges, the military had questioned the photographer’s presence on the scene following the abduction and killing of an Italian, Salvatore Santoro. I worked as Bilal Hussein’s counsel in 2006, and during this time I conducted a comprehensive review of the very vague allegations surrounding Santoro’s death, reviewing the documentary evidence with experts and interviewing the available witnesses. The AP photographer had been stopped with others at a check point and asked to take “trophy photos” of Santoro, who had been killed earlier in the day. A study of the photos and examination of other witnesses bore out the account, and military investigators also acknowledged off the record that there was no real basis for charges. But they continued to raise them nonetheless — apparently because they were under relentless pressure to come up with some charges.

Has anyone else noticed the inconsistent -- and yes, somewhat hypocritical -- positions the Bush administration has taken toward damage awards US courts have imposed against Iraq and the Palestinian Authority? The administration is concerned that the $174 million award given to the family of a US citizen killed in Israel in 2002 will harm the Palestinian Authority's "political and financial viability," yet refuses to offer an opinion about whether a federal judge should nullify the award:

The decision in effect allows the State Department to sidestep a politically vexing issue concerning victims of terrorism, while retaining the option of intervening later if it appears that the cases could imperil the government headed by Palestinian Authority President Mahmoud Abbas, officials said. In its filing to the court yesterday, the administration said it supports compensation for victims of terrorism, but urged a settlement of the lawsuits to the "mutual benefit" of all parties.

Lawmakers had urged State in recent weeks not to intervene, and the families of victims held emotional meetings with officials from the State and Justice departments two weeks ago. All sides claimed some measure of victory with the filing yesterday.

"I am glad that the government will not interfere at this stage and am hopeful that it will refrain from supporting the legal position of the terrorists-defendants in the future," said Leslye Knox, widow of Aharon Ellis, a U.S. citizen killed in Israel in 2002. A federal judge in 2006 ordered the Palestinian Liberation Organization and the Palestinian Authority to pay Knox and other Ellis relatives nearly $174 million, but nothing has been paid.

By contrast, the administration has actively opposed payment of the $1 billion in damages awarded to US soldiers who were tortured by Saddam's regime:

In a court challenge that the administration is winning so far but is not eager to publicize, administration lawyers have argued that Iraqi assets frozen in bank accounts in the United States are needed for Iraqi reconstruction and that the judgment won by the 17 former American prisoners should be overturned.

If the administration succeeds, the former prisoners would be deprived of the money they won and, they say, of the validation of a judge's ruling that documented their accounts of torture by the Iraqis — including beatings, burnings, starvation, mock executions and repeated threats of castration and dismemberment.

"I don't want to say that I feel betrayed, because I still believe in my country," said Lt. Col. Dale Storr, whose Air Force A-10 fighter jet was shot down by Iraqi fire in February 1991.

"I've always tried to keep in the back of my mind that we were never going to see any of the money," said Colonel Storr, who was held by the Iraqis for 33 days — a period in which he says his captors beat him with clubs, broke his nose, urinated on him and threatened to cut off his fingers if he did not disclose military secrets. "But it goes beyond frustration when I see our government trying to pretend that this whole case never happened."

Another former prisoner, David Eberly, a retired Air Force colonel whose F-15 fighter was shot down over northwest Iraq and who said his interrogators repeatedly pointed a gun at his head and pulled the trigger on an empty chamber, said he was surprised by the administration's eagerness to overturn the judgment.

"The administration wants $87 billion for Iraq," he said. "The money in our case is just a drop of blood in the bucket."

I will leave it to our intrepid readers to discern the politics behind the different positions...

Slate is publishing a set of dispatches this week about Israel's newest tourism innovation: the "Ultimate Counter-Terrorism Mission," which is "packed full of visits to military bases, security briefings from members of Mossad and Shin Bet, and stops for fine dining." The dispatches are fascinating and well worth reading in themselves, but I was particularly struck by an anecdote in today's dispatch, involving a guest lecture that Haim Ben Ami, a former head of interrogations at Shin Bet, gave to one of Alan Dershowitz's Harvard Law School classes about the infamous "ticking time-bomb" scenario. As most readers probably know, Dershowitz used the scenario to defend torture in an editorial in the L.A. Times:

"But what if (torture) were limited to the rare "ticking bomb" case--the situation in which a captured terrorist who knows of an imminent large-scale threat refuses to disclose it?

Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people.

To prove that it would not, consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen. The kidnapper refuses to disclose its location. Should we not consider torture in that situation?"

Dershowitz answered that question it in the affirmative in a later interview with the San Francisco Chronicle:

"Everybody says they're opposed to torture. But everyone would do it personally if they knew it could save the life of a kidnapped child who had only two hours of oxygen left before death. And it would be the right thing to do."

To his credit, Dershowitz acknowledges that "the argument for allowing torture as an approved technique, even in a narrowly specified range of cases, is very troubling." He thus insists that the use of torture be conducted openly, with judicial authorization — his notorious "torture warrant":

I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law.

Judges should have to issue a "torture warrant" in each case. Thus we would not be winking an eye of quiet approval at torture while publicly condemning it.

Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most important, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law.

Here's where the Slate anecdote about Ben Ami becomes interesting. Commentators on both the left and the right have criticized the ticking time-bomb scenario as being wildly implausible. You would think, therefore, that someone who believes that torture should be accompanied by accountability and transparency would be concerned with separating fantasy from reality — with not making the ticking-time bomb scenario seem far more likely, and thus the right to torture far more necessary, than it really is. But no:

Like a good TV show, it was often hard to tell where Ben Ami's stories crossed over into fiction. In his own version of a "ripped from the headlines" story, he recalled giving a lecture to law students at Harvard at the invitation of well-known professor Alan Dershowitz. He recounted to the students Shin Bet's involvement in delivering a suspected terrorist to the U.S. Embassy in Lebanon in 1983. The Israelis, Ben Ami said, had knowledge of a planned attack on the United States, but they knew no details. As Ben Ami recalled, the Israelis told the Americans: "Take him, make an interrogation, and we wish you success."

Except the suspect wouldn't talk. "He said: 'Look, I wish to talk, but I'm very tired. I'd like to fall asleep for at least two hours.' " The suspect was taken, at his request, to a nearby apartment to sleep. The next day, the embassy was destroyed.

The story is a powerful argument in favor of torture—or at least enhanced interrogations—except for one problem: Like Ben Ami's other story of the drowned terrorists (and most stories involving a "ticking time bomb"), it's apocryphal. It never happened. Real life is never that clean-cut. Ben Ami, however, forgot to reveal that to the Harvard law students.

Realizing his mistake later that day, Ben Ami panicked. "I called Alan Dershowitz and said, 'It's wrong.'" As Ben Ami recalled, Dershowitz told him not to worry: "He said, 'No, it's a good story, leave it.'"

I think Dershowitz has made the critics' point. Accountability and transparency for torture indeed!

Whatever will Fox News do now? Not even the Pentagon still believes that Saddam had operational ties to al Qaeda:

An exhaustive review of more than 600,000 Iraqi documents that were captured after the 2003 U.S. invasion has found no evidence that Saddam Hussein's regime had any operational links with Osama bin Laden's al Qaida terrorist network.

The Pentagon-sponsored study, scheduled for release later this week, did confirm that Saddam's regime provided some support to other terrorist groups, particularly in the Middle East, U.S. officials told McClatchy. However, his security services were directed primarily against Iraqi exiles, Shiite Muslims, Kurds and others he considered enemies of his regime.

The new study of the Iraqi regime's archives found no documents indicating a "direct operational link" between Hussein's Iraq and al Qaida before the invasion, according to a U.S. official familiar with the report.

He and others spoke to McClatchy on condition of anonymity because the study isn't due to be shared with Congress and released before Wednesday.

President Bush and his aides used Saddam's alleged relationship with al Qaida, along with Iraq's supposed weapons of mass destruction, as arguments for invading Iraq after the September 11, 2001, terrorist attacks.

Then-Defense Secretary Donald H. Rumsfeld claimed in September 2002 that the United States had "bulletproof" evidence of cooperation between the radical Islamist terror group and Saddam's secular dictatorship.

Then-Secretary of State Colin Powell cited multiple linkages between Saddam and al Qaida in a watershed February 2003 speech to the United Nations Security Council to build international support for the invasion. Almost every one of the examples Powell cited turned out to be based on bogus or misinterpreted intelligence.

As recently as last July, Bush tried to tie al Qaida to the ongoing violence in Iraq. "The same people that attacked us on September the 11th is a crowd that is now bombing people, killing innocent men, women and children, many of whom are Muslims," he said.

The new study, entitled "Saddam and Terrorism: Emerging Insights from Captured Iraqi Documents", was essentially completed last year and has been undergoing what one U.S. intelligence official described as a "painful" declassification review.

The only surprising thing about the report is that the Bush administration didn't manage to bury it until, say... November 5th. That must be painful indeed.

P.S. McClatchy is truly a national treasure. You have to love a news organization whose motto is "truth to power." (What a radical idea!) Pray that the company's well-known financial problems — its newspapers have lost more than $1.5 billion over the past two years — don't lead to its collapse.

UPDATE: How embarrassing is the report to the Bush Administration? Consider the lengths it's going to ensure it gets read by as few people -- especially journalists -- as possible:

The Bush Administration apparently does not want a U.S. military study that found no direct connection between Saddam Hussein and al Qaeda to get any attention. This morning, the Pentagon cancelled plans to send out a press release announcing the report's release and will no longer make the report available online.

The report was to be posted on the Joint Forces Command website this afternoon, followed by a background briefing with the authors. No more. The report will be made available only to those who ask for it, and it will be sent via U.S. mail from Joint Forces Command in Norfolk, Virginia.

It won't be emailed to reporters and it won't be posted online.

Shocking legal news out of Iraq — the Court of Cassation has reversed the conviction of Mohammed Munaf, the US citizen sentenced to death for helping kidnap three Romanian journalists in Iraq in 2005:

Munaf's lawyer, Joseph Margulies, said the Iraqi Court of Cassation reversed the conviction and sentence because it could not determine the role Munaf and other defendants played in the kidnapping from the court record. The Iraqi prosecutor supported the court's decision, Margulies said in an e-mail to The Associated Press.

Munaf is part of a pending Supreme Court case in which he and another naturalized American, Shawqi Omar, are trying to prevent the military from handing them over to the Iraqis.

The Bush administration argues that they should not be able to contest their pending transfers in U.S. courts since they are being held not by the United States, but by coalition forces in Iraq.

The administration, in its Supreme Court filing, said, "Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists."

Munaf has said his confession was coerced.

The US role in Munaf's case has been bizarre, to say the least. According to Scott Horton, the trial judge in the case had initially been set to dismiss the charges for lack of evidence — until two Americans intervened and convinced him otherwise. I can't do the story justice, so here is Horton's account, in all its Kafkaesque glory:

AMY GOODMAN: Scott Horton, I wanted to go back to another story, one that we have covered that hasn’t gotten a lot of attention: Mohammad Munaf. He is the Iraqi American who has just been sentenced to death also. Can you talk about his case?

SCOTT HORTON: Well, I was astounded by that, when I first heard a report about it... So I spoke with the defense counsel. I also spoke with a bailiff at the court about it, to find out what had happened in this proceeding. And what they all described — in fact, completely they all had exactly the same account of what happened — was shocking.

They say that he was brought into the courtroom, Mr. Munaf, by two American officers — one they described as, quote, “the general”; the other they described as a man named Lieutenant Pirone. He was brought before the court. The court had announced, prior to session, that reviewing the evidence of the case, he had concluded that he would dismiss the charges, that there were no substantial charges, and that at this hearing, that would be a conclusion to the affair, there would be a dismissal.

[snip]

SCOTT HORTON: ... And then, the account is that this American lieutenant stood up, began arguing very loudly with the judge, saying it was unacceptable that this man be dismissed, that he had to be convicted, and moreover that he had to receive the death sentence. And the American whipped out a piece of paper saying he was there speaking on behalf of the government of Romania and the government of Romania demanded the death sentence.

Afterwards, there was a private discussion, I’m told, between the Americans and the judge. The judge emerged from this ashen-faced, looking very upset, and then proceeded immediately to convict the man and sentence him to death.

And subsequently, the government of Romania reacted, saying they knew nothing about this proceeding and they certainly did not authorize an American officer to stand up in the court and demand the death sentence. In fact, the government of Romania does not endorse the death sentence. So there’s something very strange going on about this case.

I haven't been following Munaf's Supreme Court case, so I can't discuss what effect the reversal will have. Perhaps one of our readers will weigh in.

Continuing their fractured ways — last week they failed to agree on provincial elections — Iraq's Presidency Council is still fighting over the death sentences of Ali Hassan al-Majid, Sultan Hashim Ahmad Jabburi Tai, and Hussein Rashid Mohammed. They have agreed that Chemical Ali should hang, but VP Tariq al-Hashemi continues to oppose executing the other two:

Prime Minister Nouri al-Maliki's office lashed out Friday at the Iraqi presidential council for refusing to approve the executions of two of the three men sentenced to hang for the genocidal campaign against Iraq's ethnic Kurdish minority under Saddam Hussein.

[snip]

Earlier Friday, senior government aides said the three-member Presidency Council, which consists of President Jalal Talabani and his two vice presidents, had signed off on the execution of Saddam's cousin Ali Hassan al-Majid, known as "Chemical Ali," for ordering the use of poison gas against villages said to be harboring Kurdish guerrillas.

The decision was the last legal obstacle to carrying out the sentence, which must be done within 30 days.

But an aide said Vice President Tariq al-Hashemi who, like the defendants, is a Sunni, would not endorse the executions of the two military leaders who helped carry out the deadly attacks: Defense Minister Sultan Hashim Ahmad Jabburi Tai and the ex-deputy head of army operations, Hussein Rashid Mohammed.

Execution orders require the signatures of all three members of the Presidency Council under Iraqi law.

Talabani, a Kurd who opposes the death penalty on principle, has given his Shiite vice president, Adel Abdul-Mahdi, authority to sign on his behalf.

Many Sunnis regard Tai and Mohammed as military professionals who were following orders, and al-Hashemi has argued that their lives should be spared. Sensing an opportunity to encourage reconciliation, Talabani also has urged clemency for Tai, who is said to have had contact with the Iraqi opposition before the war and surrendered voluntarily to U.S. forces in 2003.

However, Iraq's two main Shiite parties are opposed to commuting Tai's sentence because of his role in the brutal suppression of a 1991 Shiite uprising at the end of the Persian Gulf War.

In Iraq, law is truly politics by other means.