Monday, March 3, 2008

USCG Law Specialist In Iraq.

Coast Guard Law Specialist, Lieutenant Robert M. Pirone.

Yesterday, 29 Feb 2008, on National Public Radio's flagship news program, All Things Considered, Nina Totenberg had a story, Iraqi Conviction Overturned, Munaf to Face High Court. It was the usual, you know, U.S. citizen to be killed after sentencing by Iraqi courts, until she started telling the story and somehow a Coast Guard lieutenant's actions are coming into play before the Supreme Court.

Evidently, Mohammad Munaf had been detained by U.S. forces, and he was later turned over to the Iraq government to face trial in the Central Criminal Court of Iraq (CCCI). From a brief filed on behalf of Mr. Munaf, we continue the story:

Because Mr. Munaf was charged in connection with the kidnapping of Romanian citizens, the CCCI could not prosecute him without a formal complaint by the Romanian government.

At the October 12, 2006 proceeding, Lieutenant Robert M. Pirone of the U.S. Coast Guard appeared in the CCCI, purportedly on behalf of the Romanian Government, to make a formal complaint against Mr. Munaf. Resp. to Petrs.’ Emergency Supplement to Mot. TRO at 2.

Lieutenant Pirone stated that the Romanian Embassy had authorized him to appear on its behalf. Id. He claimed this authorization was documented in a signed and stamped letter subrnitted (sic) in advance to the Iraqi court. Id. No such letter was produced in court, however, and neither Mr. Munaf nor his counsel have seen it. On the basis of Lt. Pirone’s complaint, Mr. Munaf was convicted and sentenced to death.
So the brief says.

Evidently, the Supreme Court decided today to hear two cases in late March that, according to a brief by the Brennan Center for Justice,
present a stark constitutional question: do Americans seized and held abroad have the same fundamental rights as other U.S. citizens?

The cases will be heard on March 25 and the Supreme Court will decide two issues: First, whether military officials have the power to seize and detain a U.S. citizen, without judicial review, based on their claim that they are "agents" of a multinational entity.
And second, do those officials then have free rein to hand over an American to another government likely to torture and kill him.
The story of how Lieutenant Pirone got mixed up in all of this ought to be interesting, no matter what happens to the case.

Mr. Pirone is, indeed, a Coast Guard attorney. He is a 2002 graduate of Pace Law School, a member of the New York and Connecticut Bars, and was commissioned as a Lieutenant in the Coast Guard in August 2003.

LT Pirone has been involved in a number of interesting cases including United States v. Jesse C. Hunter and United States v. Albert (NMN) Stellon, Jr.
LT Perone, a 1993 graduate of Fordham Preparatory School in the Bronx, updated his alma mater in 2006 writing,

"I’m still a JAG with the United States Coast Guard. However, my base of operations has shifted from Washington, DC to Baghdad, Iraq. I’m an attorney working with the Central Criminal Court of Iraq. Here I represent the Coalition Forces prosecuting all sorts of bad guys in the Iraqi Courts, from Al-Qaeda members to your average grenade throwing insurgent. . ."
I wonder where he thought Mohammad Munaf fell along that spectrum.

Another brief filed on behalf of this upcoming Supreme Court case noted,
Robert Pirone, a Coast Guard Lieutenant who serves as an attorney at the CCCI Liaison Office in Baghdad, was present at the hearing in his capacity as a participant in MNF-I. Pirone Decl. ¶ 1. According to Pirone’s sworn affidavit, Pirone appeared at the trial to make a formal complaint for the Romanian government about the kidnapping, whose victims were all Romanian.5 Id. ¶ 7. Pirone was under oath at the trial, and his notarized authorization to represent the Romanian Embassy had been submitted to the court weeks before the trial. Id. In his affidavit, Pirone attests that his role at the trial was limited to answering questions about the case, based on prior confessions by the defendants, and to making the formal complaint, a requirement under Iraqi law.
This is likely not the forum to ask why the Romanians couldn't get a diplomat to speak on their behalf.
Photograph of LT Robert M. Pirone was originally published in the Coast Guard Reservist, Issue 03/07.



certiorari to the united states court of appeals for the district of columbia circuit

No. 06–1666. Argued March 25, 2008—Decided June 12, 2008*

The Multinational Force–Iraq (MNF–I) is an international coalition force composed of 26 nations, including the United States. It operates in Iraq under the unified command of U. S. military officers, at the Iraqi Government’s request, and in accordance with United Nations Security Council Resolutions. Pursuant to the U. N. mandate, MNF–I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law.

Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are American citizens who voluntarily traveled to Iraq and allegedly committed crimes there. They were each captured by military forces operating as part of the MNF–I; given hearings before MNF–I Tribunals composed of American officers, who concluded that petitioners posed threats to Iraq’s security; and placed in the custody of the U. S. military operating as part of the MNF-I. Family members filed next-friend habeas corpus petitions on behalf of both petitioners in the United States District Court for the District of Columbia....

Federal district courts, however, may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution. Because petitioners state no claim in their habeas petitions for which relief can be granted, their habeas petitions should have been promptly dismissed, and no injunction should have been entered....

Petitioners argue that they are entitled to habeas relief because they have a legally enforceable right not to be transferred to Iraqi authorities for criminal proceedings and because they are innocent civilians unlawfully detained by the Government. With respect to the transfer claim, they request an injunction prohibiting the Government from transferring them to Iraqi custody. With respect to the unlawful detention claim, they seek release but only to the extent it would not result in unlawful transfer to Iraqi custody. Because both requests would interfere with Iraq’s sovereign right to “punish offenses against its laws committed within its borders,” Wilson v. Girard, 354 U. S. 524, 529, petitioners’ claims do not state grounds upon which habeas relief may be granted. Their habeas petitions should have been promptly dismissed and no injunction should have been entered....

Habeas is governed by equitable principles. Thus, prudential concerns may “require a federal court to forgo the exercise of its habeas … power.” Francis v. Henderson, 425 U. S. 536, 539. Here, the unusual nature of the relief sought by petitioners suggests that habeas is not appropriate. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536. The typical remedy is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484. But the habeas petitioners in these cases do not want simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution—precisely what they went to federal court to avoid.

The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. Further, Munaf is the subject of ongoing Iraqi criminal proceedings and Omar would be but for the present injunction. Given these facts, Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution, see Neely v. Henkel, 180 U. S. 109, 123. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136.

Petitioners’ allegations that their transfer to Iraqi custody is likely to result in torture are a matter of serious concern but those allegations generally must be addressed by the political branches, not the judiciary. The recognition that it is for the democratically elected branches to assess practices in foreign countries and to determine national policy in light of those assessments is nothing new. As Chief Justice Marshall explained in the Schooner Exchange, “exemptions from territorial jurisdiction . . . must be derived from the consent of the sovereign of the territory” and are “rather questions of policy than of law, … they are for diplomatic, rather than legal discussion.” 7 Cranch, at 143, 146. In the present cases, the Government explains that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result and that the State Department has determined that the Justice Ministry—the department which has authority over Munaf and Omar—as well as its prison and detention facilities, have generally met internationally accepted standards for basic prisoner needs. The judiciary is not suited to second-guess such determinations.

Roberts, C. J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., join

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