RENEE MONTAGNE, Host:
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: David Rifkin, a Bush administration ally, makes the administration's argument that it's not the United States that's holding these men, it's the multinational forces in Iraq. But, he says, even if it were just American forces holding these men...
DAVID RIFKIN: It still wouldn't make any difference, because American forces are not holding these two individuals because of infractions they committed against American forces, applying U.S. law. They're holding them, they're really warehousing them, as an accommodation to the Iraqi government.
AZIZ HUQ: The government's argument here is dancing angels on pinheads.
TOTENBERG: Aziz Huq is a law professor at NYU and co-counsel for Omar and Munaf. He knows that both men are American citizens being held by American forces.
HUQ: When you pick a United States citizen up overseas, when you accuse them of very serious offenses related to terrorism, when you hold them for protracted periods of time, the citizen has a right to come into court and say, no. You're wrong. Here's the actual facts.
TOTENBERG: Citizenship is key, says Huq, noting that the Supreme Court ruled four years ago in the case of an American-born Saudi picked up on the battlefield in Afghanistan, that a U.S. citizen cannot be detained without some due process of law.
HUQ: The Supreme Court said that there are no blank checks. There's no black holes into which the government can take a U.S. citizen and simply put them where the government's detention decision would be beyond the power of any court to review. What the government is, in effect, saying in this case is that while, yes, there is such a blank check provided we claim that we are going to transfer this person over to some other government.
TOTENBERG: But David Rifkin counters that citizenship is irrelevant here.
RIFKIN: A sovereign country has a full and absolute right to prosecute individuals of whatever citizenship for criminal infractions on their soil. These people traveled to Iraq, committed criminal offenses on Iraqi soil. The Iraqi government has jurisdiction. Your citizenship is not a shield.
TOTENBERG: Rifkin contends that under international law, the Iraqis have a right as a sovereign power to the transfer of these detainees. He knows that Omar and Munaf are not being extradited from the United States, and that even if they were, they would be entitled to relatively few legal protections.
RIFKIN: Just because things happen in foreign countries that don't meet our exacting standards of, you know, the glove does not fit you got to acquit, does not mean that we're entitled to trample upon the sovereignty and judicial system of other countries.
TOTENBERG: Again, Professor Huq.
HUQ: There's no question that, yes, there are often agreements between the United States and the other country that entail and allow a transfer. But before that transfer happens, the citizen has a right to come into court and challenge the legality of it.
TOTENBERG: David Rifkin asserts that once a civilian U.S. citizen in U.S. custody in a foreign country is accused of a crime in that country, the U.S. must, under international law, turn that individual over for trial, unless there are agreements to the contrary. The U.S. courts have no role to play, he says, and if they did, that would be a diplomatic disaster.
RIFKIN: They decide, if the Supreme Court decides it's the wrong way, this would create total anarchy.
TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
