Inside The Pentagon
by Elaine M. Grossman
December 1, 2005
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New Rules In Iraq May Make It Tougher To Keep Insurgents Behind Bars
Top U.S. military leaders in Baghdad have agreed with Iraqi officials to require more evidence before keeping a suspected insurgent behind bars, but the move is generating enormous controversy behind the scenes, officials tell Inside the Pentagon.
The effort appears aimed at better protecting innocent civilians who get caught up in security sweeps from being detained for prolonged periods.
But American officers on the tip of the spear are becoming increasing alarmed by the number of insurgents who have committed violence against troops or civilians after being freed from incarceration in Iraq. Many say existing detainment rules already make it difficult to substantiate charges against captured individuals. The anticipated changes, due for implementation this month, will only heighten the risk of violence in Iraq and further jeopardize the U.S.-led counterinsurgency campaign, according to some uniformed officials in the region.
“The burden of proof is in favor of the insurgents,” says one officer in Iraq. “I’m constantly asking myself, ‘Why should I risk my life and the lives of my soldiers to detain someone who will only be put back on the streets in a matter of months?’”
In what may be an ominous sign, military officials are beginning to question whether they can effectively achieve even the first step of President Bush’s “clear-hold-build” strategy in Iraq’s most dangerous sectors unless detainment is made more effective. Meeting Bush’s objective of clearing “areas of enemy control by remaining on the offensive, killing and capturing enemy fighters and denying them safe haven” relies on an ability to keep insurgents off the streets, officers tell ITP.
A number of high-profile attacks have been attributed to insurgents who were earlier detained in Iraq but subsequently released.
One of the suspected suicide bombers who killed 57 people and wounded more than 100 at three luxury hotels in Amman, Jordan, on Nov. 9 was detained a year earlier during a battle between Marines and insurgents in Fallujah, The Philadelphia Inquirer reported last month. After about two weeks in confinement, Safah Mohammed Ali was released by U.S. forces who “determined there was no compelling evidence that he was a threat to the security of Iraq,” the newspaper quotes a military spokesman as saying.
In August, another suspected insurgent -- released from prison just days earlier by an Iraqi judge -- shot and wounded an Army lieutenant colonel who commanded the 1st Battalion of the 24th Infantry Regiment in Mosul.
And there were unconfirmed reports early this year that even the most- wanted terrorist in Iraq, Abu Musab al-Zarqawi, may have been captured and released by Iraqi police in late 2004 during operations in Fallujah.
Lesser-known insurgents sometimes seem to cycle in and out of detention as they continue to perpetrate violence in local communities, some U.S. officials report.
“We’ve captured [many of] these insurgents several times,” says one senior non-commissioned officer serving in a front line combat unit in Iraq. “You can recognize them [when] they’ve been captured or they’re dead.”
Like most of the U.S. military personnel interviewed for this article, this NCO spoke solely on condition of anonymity, citing the issue’s sensitivity.
U.S. military leaders initially drew up rules to govern the detainment of suspected insurgents based on broad powers, outlined in June 2004 in U.N. Security Council Resolution 1546, for “internment where this is necessary for imperative reasons of security.”
U.S. forces in Iraq must move detainees they have captured from forward operating locations to regional facilities within 24 hours and develop a “prosecutable case” within 72 hours, military sources tell ITP. A combined U.S.-Iraqi judicial board reviews the case and, if it finds a preponderance of evidence against the suspect, the detainee is passed to the Central Criminal Court of Iraq for trial.
A prisoner is either moved to a central facility within two weeks for his case to begin moving through the Iraqi justice system, or he must be released, officials say.
More than half of those captured across Iraq are released during the initial step of the judicial review process. The so-called “Combined Review and Release Board” has since its August 2004 inception recommended a total 12,052 detainees for release and 9,903 for continued internment, according to data posted this week to a coalition force Web site.
In Baghdad alone, an average of 550 suspected insurgents are captured each month and, of those, about half are released within two weeks, according to Army Brig. Gen. Mark O’Neill, an assistant commander of the 3rd Infantry Division, which is operating in the Iraqi capital.
Interviewed Nov. 18, he told ITP his troops “haven’t seen a lot” of the same insurgents rounded up multiple times and, of the cases that make it to the central Iraqi court, “the vast majority” result in a conviction.
Across Iraq, the central court has convicted just over half of the 1,301 alleged insurgents tried since the tribunal’s October 2003 inception, according to the coalition Web site.
Current guidelines demand that the evidence coalition forces assemble against a captured insurgent include two sworn statements describing the crime, photographs of the target and any contraband discovered, and a completed apprehension form and evidence voucher, according to U.S. officials.
But the time line imposed on U.S. forces for putting together a case against each suspected insurgent in custody “is very difficult and does not allow time for adequate interrogation or investigation,” says one official.
A top U.S. officer at Multinational Force-Iraq headquarters in Baghdad recently made that job even tougher.
On Aug. 5, Army Maj. Gen. William Brandenburg -- the coalition’s deputy commanding general for detainee operations -- issued new instructions that will increase the standard of evidence required to keep Iraqi civilians in custody, sources say. The changes are meant to lay the groundwork for a constitutionally elected government that effectively replaces the U.N. resolution’s mandates by the end of the year.
Beginning this month, “all witnesses must have direct knowledge of the [suspected insurgent’s] criminal activity and they must be available to testify” in Iraqi court, according to one official in Iraq familiar with the new rules.
Witnesses can no longer include confidential sources that have provided crucial tips and tactical intelligence to U.S. forces to date, according to officials. In the future, witnesses will not only be publicly identified but their credibility must also be established before an Iraqi court, these sources say.
Demanding that confidential tipsters be exposed and their backgrounds scrutinized is a “bad idea” in fighting a counterinsurgency campaign, asserts one officer in Iraq. “We will never get the support of the population when they risk their lives to give us information and, when the mission is over, 14 days later or less the insurgents are released.
We are now putting the informant’s life and family at risk.”
Even as U.S. forces have begun this fall to transition to the stricter rules, insurgent retribution against Iraqi informants exposed in the judicial process “has occurred several times,” this officer says.
Heightened fear among local Iraqi communities appears to be affecting the military’s ability to gather intelligence on insurgent activity, sources say. The number of calls to a nationwide tip line in Iraq dropped from more than 3,000 in September to less than 300 in October, according to one U.S. official in Iraq.
The new policy also expands the amount of documentation U.S. forces are required to provide on each person captured.
The evidence packet now must also include the two direct-witness statements; diagrams of the target area that depict the locations and distances between any pieces of incriminating evidence; a chronology of events; photos of the suspect, target area, contraband and its original location, and sight lines between the suspect and the location where contraband was found; and the methodology and results of any explosives testing performed.
The demand for higher standards of evidence reflects an intention to transition from using captured insurgents as potential sources of intelligence through interrogation to regarding them more as suspected “criminals for prosecution in the Iraqi judicial system,” says one official familiar with Brandenburg’s August memo.
Part of the hurdle is in meeting Iraqi judicial tests of proof that a crime has been committed. Judges in Iraq are given enormous latitude in determining cases based on “the weight of the evidence,” and may choose to implement standards laid out in any of three, often conflicting sources -- the 1971 Iraqi Law on Criminal Proceedings, religious texts or precedents established by prior cases. Moreover, the Iraqi legal system does not recognize Western concepts such as probable cause, preponderance of evidence or reasonable suspicion, officials say.
To help guide its own rules for detainment, the U.S. military in Iraq has imposed probable cause standards on itself, officers report.
The bottom line is that Iraqi judges tend to demand overwhelming physical evidence before deciding to keep a suspected insurgent locked up, U.S. officials say. Iraqi prosecutors -- cognizant of that fact and reluctant to bring forward cases a judge will throw out -- sometimes simply refuse to refer a case to the Central Criminal Court of Iraq, U.S. officials tell ITP.
“Having decided to send captured insurgents to the Iraqi central criminal court, the coalition has to abide by its rules,” responds one counterinsurgency expert who has worked in Iraq. “Some units haven’t mastered the Iraqi legal process yet.”
At the same time, even some cases backed by strong evidence have been thrown out by “judges who appear sympathetic to the enemy,” says one U.S. military official.
“The rules assume a functioning Iraqi legal system,” the official says.
“It is nonexistent in many areas.”
For all the desire to transition to a normally functioning -- if underdeveloped -- Iraqi judicial process, the insurgency continues to undermine civil order in Iraq and should not be treated on a par with the day-to-day crime seen in stable societies, many officers are arguing.
The continued level of insurgent violence against U.S.-led forces and Iraqi civilians is out of sync with political progress in the nation, defense officials and experts observe. Although the first constitutional government is to be elected this month, insurgent attacks across Iraq have risen to a weekly average of 600 -- nearly twice the level of early last year. Loss of life among U.S. troops in Iraq has peaked this fall as voting day approaches.
“We are a nation of rule-of-law proponents and, conceptually, [we] don’t want to unjustly keep anyone in jail who [has] done nothing wrong,” says one U.S. military officer in the region. “But at the same time, we’re trying to win a war against an enemy that is keenly aware of the dilemma.”
In fact, “this is exactly the objective of guerrilla warfare -- to provoke [those in power] to overreact and alienate the population,” says Vali Nasr, a Middle East and South Asia professor at the Naval Postgraduate School in Monterey, CA.
Indeed, a number of Iraqis have turned against the U.S.-led occupation only after they were mistakenly detained in broad security sweeps of contested areas, officials and experts say.
“There is no easy answer to this,” says Nasr, “other than more manpower, greater intelligence capability and a more disciplined exercise of force.”
Yet a number of officers in Iraq say they lack sufficient resources to consistently construct prosecutable cases for Iraqi courts -- and at the same time fight the insurgency, protect the population from attack, and build and train new Iraqi security forces.
Top commanders and policymakers in Washington “are asking our soldiers and Marines to . . . be law clerks and expert crime scene detectives,” says one officer. “Most tactical commanders do not have [the] operational patience necessary to develop the type of [insurgent] targets we are going after.”
Sometimes military units in Iraq “stumble on a big fish [who is] subsequently turned loose for lack of evidence” because the investigative groundwork typical of police detective work has not been laid, this officer says. The “result is their cells go deeper underground and are thus harder to target.”
In fact, the bigger the fish, the less likely it is he will be found with incriminating evidence, according to U.S. military personnel in Iraq. (It is the insurgent foot soldiers, rather than their commanders, who typically are found with weapons and ammunition in their car trunks, officials say.)
Like mafia bosses, the “high-value” insurgent leaders often instill great fear among those who might be able to identify them, some officials say.
“In these cases, continued detention will be determined by the numbers of eyewitnesses willing to testify and [have] their credibility [questioned]. Fat chance,” says one officer. “For the type of operations being conducted in Iraq, this is crippling our ability to impact those [insurgents] that have the greatest effect.”
“It is almost impossible to get witnesses to testify,” says another.
The Mosul insurgent who shot Army Lt. Col. Erik Kurilla three times in the leg and arm in August had been released, along with two other suspects, just four days earlier by an Iraqi judge who cited a “lack of evidence” for keeping the men behind bars, according to Lt. Col. Brad Becker, a fellow battalion commander under the Stryker brigade deployed in the area at that time.
Khalid Jasim Noe initially was apprehended last December with a sniper rifle, silencer, day and night scopes and associated paraphernalia -- and, “most disturbingly, a picture of Brig. Gen. [Malooh Atala] Ali, who was a very successful Iraqi army commander in my area,” Becker tells ITP.
Despite a treasure trove of physical evidence -- and a confession by Noe that “they had been paid a large sum of money to assassinate Brig. Gen. Ali” -- in this case “the Iraqi court system didn’t work and Erik paid the price,” Becker says.
But he also notes that in other cases, “we had hundreds of detainees who were sentenced to jail by the Iraqi courts.”
“We have not had any problem with the rules as they have been laid out for us,” says O’Neill. “There is sufficient opportunity for us to establish our case and to gather the information we need to either prosecute these detainees, follow up on the information that they provide,” or let them go, he said.
Rather than tighten up the rules governing insurgent detention, U.S. military leaders in Iraq have agreed to a number of “goodwill releases” in recent months. Several officials anticipate more such releases following the Dec. 15 elections as a gesture of reconciliation across Iraq’s ethnic and tribal groups.
But “the result is increased risk to soldiers -- ours and Iraqis’ -- and the population is more reluctant to give us intelligence because terrorists and criminals return to their neighborhoods,” says one U.S.
official. “Goodwill releases actually create ill will among the good people of Iraq.”
The new policies are also affecting U.S. troop morale, according to some.
“Demanding better evidence packets shifts the blame for releases on the back of the soldier, when in fact the reason for these insurgents getting back on the streets are the senior officials that have made these releases possible,” says one officer in Iraq.
Others say military leaders are attempting to strike a delicate balance between political pressures and military imperatives -- all against a backdrop of increasing calls from both Iraqi and U.S. lawmakers to begin sending American troops home.
“In an insurgent war,” says an officer in the region, “not only are there no tactical front lines or rear areas, even matters of law enforcement and justice are blurred.”
—Elaine M. Grossman