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US federal judge rejects Saddam bid for stay of execution

[JURIST] A US federal judge has rejected an eleventh-hour bid by lawyers for Saddam Hussein seeking a direct stay of execution. US District Judge Colleen Kollar-Kotelly issued a 6-page ruling [text] late Friday evening following a telephone conference with lawyers in the wake of court papers filed around 1 PM Friday afternoon.

Kollar-Kotelly wrote:

As Judge Reggie Walton recently concluded in a strikingly similar matter, this “Court lacks habeas corpus jurisdiction over an Iraqi citizen, convicted by an Iraqi court for violations of Iraqi law, who is held pursuant to that conviction by members of the Multi-National Force-Iraq.” Al-Bandar v. Bush, et al., Civ. A. No. 06-2209 (RMC) (D.D.C. Dec. 27, 2006) (denying motion for temporary restraining order to prevent transfer of petitioner to Iraqi custody); see also, Al-Bandar v. Bush, et al., Civ. A. No. 06-5425 (D.C. Cir. Dec. 29, 2006) (denying motion for stay or injunction enjoining transfer of petitioner to Iraqi custody pending appeal). A United States court has no “power or authority to review, affirm, set aside or annul the judgment and sentence imposed” by the court of a sovereign nation pursuant to their laws. Hirota, et al. v. General of the Army Douglas McArthur, et al., 338 U.S. 197, 198, 69 S. Ct. 197, 93 L. Ed. 1902 (1948); Flick v. Johnson, 174 F. 2d 983, 984 (D.C. Cir. 1949). Accordingly, this Court has no jurisdiction to prevent the transfer of Petitioner Hussein to the custody of the Iraqi government, as that would effectively alter the judgment of an Iraqi court.

Moreover, Petitioner is not being held under the custody of the United States, and as a result, this Court lacks habeas corpus jurisdiction. Petitioner’s counsel agreed that, while Petitioner may be held by members of the United States Military, it is pursuant to their authority as members of the MNF-I. The MNF-I derives its “ultimate authority from the United Nations and the MNF-I member nations acting jointly, not from the United States acting alone.” Mohammed v. Harvey, 456 F. Supp. 2d 115, 122 (D.D.C. 2006). As such, it is clear that Petitioner is either in the actual physical custody of the MNF-I or in the constructive custody of the Iraqi government, and not in the custody of the United States. Id. As Petitioner is clearly not held in the custody of the United States, this Court is without jurisdiction to entertain his petition for a writ of habeas corpus.
The judge's final order [PDF] is also available. Earlier Friday evening, the US DC Circuit Court of Appeals refused to stop the US handover of Awad Hamed al-Bandar, the former chief justice of Saddam's Revolutionary Court, also scheduled for execution. AP has more.

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