Iraqi Islamic Party Leader Released Us

Iraqi Islamic Party Leader Released

The US military has released Muhsin Abd al-Hamid, the leader of the Iraqi Islamic Party. The IIP runs the provincial council in Anbar and is the only major Sunni Arab religious party that has generally been willing to cooperate with the Americans. Abd al-Hamid served on the American-appointed Interim Governing Council.

His arrest had provoked major protests.

Reader Sally Quinn kindly sends a translation of a French report from Le Monde via Reuters/AFP:

“The Islamic Party, in a communiqué, demanded an explanation for the raid on the Baghdad residence of its leader as well as an official apology. “They must also release two of this three sons, Mokdad and Assayed, who are still beikng held along with several houseguests and bodyguards, said the party without indicating their numbers . . . Although critical of the current Shi’a-dominated government, the Islamic Party has not excluded its participation in the drafting of the permanent Constitution . . . recently the party has taken a position against the blind violence
targeting the populace and the security forces while criticizing the arrest of Sunni
clerics, the warhorses of the powerful Committee of Iraqi Ulema, which refuses to
participate in negotiations surrounding the drafting of the Constitution . . . Following his release, Mr. Abdel Hamid underscored the humiliation to which he was subjected by US soldiers, saying that they handcuffed him and interrogated him for hours.”

Prime Minister Ibrahim Jaafari and President Jalal Talabani complained bitterly about the US action and apparently were not consulted about the arrest. They pointed out that the US keeps saying it wants to involve the Sunni leadership, but that arrests like this one just drive away even the moderates. The initial reports also talked about US troops confiscating money. Basically they kicked down his door, rifled through his things, hooded him, and dragged him away. There was no arrest warrant, no consultation with the supposedly sovereign Iraqi government, and apparently no knowledge of who Abd al-Hamid really is.

Susan Hu is leading a good discussion of the SNAFU over at Daily Kos. I’ve been watching CNN for hours and there is nothing about this.

A keen observer of Iraq’s legal and economic scene writes in with regard to whether the US military was legally justified in arresting Abd al-Hamid in the first place.

“Discretion may be the better part of valour, but it is quite clear:

For starters, there is this:

‘Article 15.

(B) Police, investigators, or other governmental authorities may not violate the sanctity of private residences, whether these authorities belong to the federal or regional governments, governorates, municipalities, or local administrations, unless a judge or investigating magistrate has issued a search warrant in accordance with applicable law on the basis of information provided by a sworn individual who knew that bearing false witness would render him liable to punishment. Extreme exigent circumstances, as determined by a court of competent jurisdiction, may justify a warrantless search, but such exigencies shall be narrowly construed. In the event that a warrantless search is carried out in the absence of an extreme exigent circumstance, the evidence so seized, and any other evidence found derivatively from such search, shall be inadmissible in connection with a criminal charge, unless the court determines that the person who carried out the warrantless search believed reasonably and in good faith that the search was in accordance with the law.’

The National Emergency Law makes clear that only “government officials” may arrest people. (Even if that were not clear, the requirement of a “court order” would seem unambiguous. Could there possibly be a constitution-type law that says that a court order is required for “government officials,” but anyone else, willy-nilly, who has colorable authority from somewhere else can “arrest” people?)

As far as Iraqi law is concerned, there is no question, and any question there might be could be resolved by an act of the National Assembly.

The authority of the MNF derives from SCR 1546 and an alleged “partnership,” with respect to which there is no partnership agreement (normally legally fatal), which authorizes “all necessary measures,” but one would have to ask the members of the Security Council what that would mean in the current context.

As to whether a Security Council resolution is superior to a national interim “constitution,” I leave for another day. Strict constructionists like Senator Coleman might think not.”