AMY GOODMAN: For more on the case, we’re joined by Mohammad Munaf’s attorneys. Jonathan Hafetz is Associate Counsel for the Liberty & National Security Project of the Brennan Center for Justice at NYU School of Law. He’s representing Mohammad Munaf here in the United States. We welcome you to Democracy Now!, Jonathan Hafetz.

JONATHAN HAFETZ: Good morning.

AMY GOODMAN: It’s good to have you with us. Well, explain this case.

JONATHAN HAFETZ: Well, this case is very significant. The United States has been detaining an American citizen for 16 months in Iraq.

AMY GOODMAN: How did he end up in Iraq?

JONATHAN HAFETZ: He traveled to Iraq with three Romanian journalists. He had been living in Romania with his wife and three children, who are also all U.S. citizens. He traveled with the journalists to serve as a guide and interpreter as the journalists covered stories in Iraq. And he was called upon, because of his knowledge of the language and of the terrain. They were all kidnapped.

AMY GOODMAN: He was kidnapped, as well.

JONATHAN HAFETZ: He was kidnapped, as well, released two months later. They were kidnapped by an insurgent group, released after two months. And Munaf was then taken into custody by the Americans and has been held by the Americans for 15 months.

AMY GOODMAN: What happened to the Romanians?

JONATHAN HAFETZ: They were set free. They were freed by the kidnapping, and thy’re back in Romania.

AMY GOODMAN: And what do they say?

JONATHAN HAFETZ: Well, we haven’t spoken with them. We’re hopefully calling for a hearing, at which point Munaf could testify, present his case and the evidence of witnesses in his favor to demonstrate that he is innocent, that he had no part in planning the kidnapping. He comes to the federal court as an innocent man who has been held by his own government for 16 months. And the United States takes the position that because the United States is operating as part of a multinational force, the court has no power to review his detention.

AMY GOODMAN: And the issue of the death penalty, where did it come from?

JONATHAN HAFETZ: The death penalty is very — as I understand it, it has been handed down very infrequently, only on one or two occasions in Iraq. And what our understanding is from Mr. Munaf’s Iraqi attorney was that the United States intervened in his trial last Thursday. U.S. military officials appeared, urged the judge to hand Munaf the death penalty, met privately with the judge outside of counsel and outside of the defendant’s presence. And shortly thereafter, the judge returned with a death verdict. This is a fundamental violation of due process, and as a U.S. citizen Mr. Munaf has a right to his day in United States federal court to demonstrate his innocence and that his transfer would violate fundamental due process and constitutional protections.

AMY GOODMAN: Explain what happened when these two U.S. military officers — who were they? — met with the judge. One saying he represented the Romanian government?

JONATHAN HAFETZ: Yes, one said he was there on behalf of the Romanian government. The Romanian government itself did not appear to press the case forward. Our understanding from Mr. Munaf’s Iraqi attorney was that the judge was prepared to dismiss the case, because of lack of evidence, because Romania was not pressing the criminal complaint. So the U.S. then intervened, as we understand it, and urged the judge to hand Munaf a death sentence.

AMY GOODMAN: But a U.S. soldier saying he represents the Romanian government?

JONATHAN HAFETZ: That’s correct. That’s our understanding of what happened. He appeared — a U.S. soldier appearing — said he was there on behalf of the Romanian government, and appeared in court and then met with the judge outside of the presence of the defendants and their counsel.

AMY GOODMAN: And the Romanian government says they never asked him to do this?

JONATHAN HAFETZ: We do not know what the official statement of the Romanian government is at this point. I’ve heard stories that they were not — this was not authorized, but I don’t have anything definitive.

AMY GOODMAN: I wish I could ask the Pentagon about this. We did ask them to join us on the broadcast, and they did not get back to us. But what have they said to you?

JONATHAN HAFETZ: All the government said was to confirm that Mr. Munaf had been sentenced to death. And we’ve asked the government to at least delay handing him over until the district court can assess the lawfulness of his detention and his handover to Iraq, and the government has refused even that modest relief, to allow the court to fully hear the case before it hands over an American citizen to die.

AMY GOODMAN: Where is his family today? Where is Munaf’s family?

JONATHAN HAFETZ: Well, he has some family in Iraq. A parent’s in Iraq. His sister in the United States, and his wife and children are in Romania. He has some family elsewhere, I believe.

AMY GOODMAN: What are your plans now? How do you pursue this case?

JONATHAN HAFETZ: Well, we intend to press the case forward in the district court. Again, the implications of the United States’s arguments are very far-reaching. They say that because the United States has donned the cap of the United Nations, it’s not accountable to a federal court for holding, torturing and handing over a U.S. citizen to death in a proceeding that violates due process. It would eviscerate the most fundamental protections of U.S. citizenship under the Constitution.

AMY GOODMAN: I have heard about a case like this before in Iraq, where U.S. officials met with a judge, actually privately, threatened him. And then the judge returned and reversed his position. They live in a very dangerous situation, the judges of Iraq.

JONATHAN HAFETZ: They do. My understanding is that the United States is responsible for their security, as well, which, as we know, is significant, given the situation in Iraq.

AMY GOODMAN: Jonathan Hafetz, the President is signing the Military Commissions Act today. Can you briefly summarize this act?

JONATHAN HAFETZ: The Military Commissions Act of 2006 is a far-reaching and unprecedented grant of power to the President of the United States. It does a number of things quickly. It defines a term “enemy combatant” very broadly to allow essentially innocent people who unwittingly donate money to charities to be detained as enemy combatants, and it eliminates the —

AMY GOODMAN: In this country.

JONATHAN HAFETZ: In this country, anywhere. And it eliminates all —

AMY GOODMAN: American citizens and non-citizens.

JONATHAN HAFETZ: It allows anyone to be detained as an enemy combatant. It then denies all access to the courts for aliens, non-citizens, to challenge their detention, whether they’re located here or abroad, so any of the 15 million-plus non-citizens in the United States, including long-term permanent residents, could be taken away, sent to Guantanamo or disappeared without judicial review. It also eliminates protections against torture and provides a get-out-of-jail-free card for the abuses that have gone on in the past in CIA secret prisons.

AMY GOODMAN: What do you mean “get-out-of-jail-free”?

JONATHAN HAFETZ: Well, under the War Crimes Act of 1996, any official, including CIA, or contractors who engage —- who violates the Geneva Conventions, including a provision known as Common Article 3, which provides the baseline of protections to individuals in U.S. custody, prohibits cruel treatment, torture and outrages on personal dignity. Under the War Crimes Act, if you violate Common Article 3 -—

AMY GOODMAN: This is U.S. law, War Crimes Act?

JONATHAN HAFETZ: Yes, this is U.S. It’s domestic. It’s a law passed by Congress. If you violate Common Article 3, you can be prosecuted for a war crime. What the Military Commissions Act does is to give immunity for past — effectively give immunity for past violations of the War Crimes Act. We know that there’s been torture and other abuse at Guantanamo, as well as in Bagram Air Base and secret CIA-run prisons, where approximately 3,000 people have passed through, including individuals who we know are innocent.

AMY GOODMAN: And the military commissions, what are they? It’s called the Military Commissions Act.

JONATHAN HAFETZ: Well, that’s what’s ironic about this. The act was ostensibly passed as a response to the Supreme Court’s decision in June in Hamdan v. Rumsfeld, which struck down the military commissions, these trials that the President had set up outside of court-martial and civilian courts to try suspected terrorists, that the court found they were unfair, violated U.S. law and the Geneva Conventions. So what the President did was to go back to Congress and said, “Authorize these commissions,” and in addition to grants him sweeping powers, the powers we just talked about: elimination of habeas corpus, a sweeping definition of “enemy combatant,” and elimination of checks on torture and other cruel treatment. So the Military Commissions Act creates a — a military commission is a second-class system of justice for non-citizens, military trials where the defendant doesn’t get to be present and can be convicted on evidence obtained by torture and other coercion.

AMY GOODMAN: In this election year, a number of Democrats joined with Republicans in voting for this act.

JONATHAN HAFETZ: That is true, and that is very shameful, I think, that the — the support this had and the way that the administration was able to play politics and to create essentially something that we’ve never before had in the United States: a system of military justice that threatens to subvert the whole notion of our criminal laws and our civilian protections and our constitution and, as I said, creates a second-class system of justice for any alien or non-citizen anywhere in the world, including the United States.

AMY GOODMAN: I want to thank you for being with us, Jonathan Hafetz, Associate Counsel for the Liberty & National Security Project at the Brennan Center for Justice at NYU School of Law, an attorney for Mohammad Munaf, as well.