Press Releases

12/06/2007

US detainees sent to Iraqi courts for trial face legal system mired in war's chaos

By LORI HINNANT
Associated Press Writer

BAGHDAD (AP) -- Iraqi judges and their families live behind 12-foot blast walls. Hundreds of lawyers have fled the country. Critics complain about rapid-fire trials in an overburdened court system.

This is the fractured state of Iraq's criminal justice system -- the destination for many of the 25,000 detainees now in U.S. custody and often held without charges for months or years.
Among them is Bilal Hussein, an Associated Press photographer who was picked up by American soldiers on April 12, 2006, in Ramadi. Hussein's first hearing is scheduled for Sunday.

The military has not made clear its specific allegations -- not required under Iraq's legal system until the hearing -- but has pointed to a range of suspicions that attempt to link the photographer to insurgent activity. These include claims that he offered to provide false identification to a sniper seeking to evade U.S.-led forces and took photographs that were synchronized with insurgent blasts.

The AP's inquiry found no support for those claims against Hussein, who was part of the AP's Pulitzer Prize-winning photo team in 2005. The AP says it has seen no convincing evidence that Hussein was anything other than a photographer covering a conflict zone.

The first clear accounting of the military's charges will come at the hearing. It's not clear whether the investigative magistrate in charge will ask for another session or begin reviewing the evidence and arguments.

The magistrate then must decide whether to drop the case or move it to trial before a three-judge panel -- which, in some cases, can be little more than a re-examination of the earlier evidence under the Iraqi system.

Iraqis and rights activists familiar with the Iraqi courts complain of trials lasting less than an hour followed almost immediately by a verdict. Some say the court backlog reaches into the thousands, including regular criminal cases not involving U.S. detainees.

According to a fact sheet from Task Force 134, which runs the U.S. detention operations, the Iraqi criminal court system "continues to evolve."

"There are hundreds of lawyers who are being threatened and who have been asked to abandon their cases. The hundreds who have left the country have left a huge gap in the judicial system in Iraq," said one Iraqi lawyer defending a man accused of planting a roadside bomb. "This is delaying judicial processes and denying thousands of people their legal rights."

The lawyer spoke on condition of anonymity because he feared for his safety.

Deputy Justice Minister Busho Ibrahim said: "We have a lot of detainees, and the judges cannot keep up with the flood of cases."

The United States hopes to cut the number of detainees it holds in Iraq by about two-thirds by July. Still unclear is how many will be freed and how many will be handed to an already overburdened Iraqi legal system.

Before the crackdown in Baghdad that began early this year, Busho said, his ministry had custody of 6,000 detainees. Now there are more than 9,000 in Iraqi custody, in addition to the 25,000 held by the U.S. military.

In Geneva, the International Committee of the Red Cross announced Thursday that made its first visit to an Iraqi-run detainee camp in October. The ICRC has been able to visit detainees of U.S.-led forces in Iraq since the 2003 invasion, but it took three years of talks with Iraqi authorities for similar access to their prisons, said spokeswoman Dorothea Krimitsas.

Defense Secretary Robert Gates, in a visit to Baghdad on Wednesday, said the U.S. and Iraqi governments would be negotiating the transfer of camps and detainees to Iraqi control in coming months.

For the moment, however, the combined bureaucracies of Iraqi courts and the U.S. military can prove to be enormous burdens for families and detainees.

Abid Abbas, 60, said American soldiers raided his neighborhood in July and took away his two sons, as well as some neighbors. They were all accused of being members of the Mahdi Army, the feared Shiite militia led by the firebrand cleric Muqtada al-Sadr.

Abbas, who insists his sons are innocent, said he and his wife had an appointment to see them at Camp Cropper, just outside Baghdad, in October. But the sons -- Allaa, 30, and Safaa, 20 -- were instead at Camp Bucca, near the Kuwaiti border 340 miles to the south.
At the Bucca gates, Abbas said "the Americans asked me through the interpreter whether I was Sunni or Shiite." They answered "Shiite," he said, and were fingerprinted and filled out some forms. Then they received another date to see their sons: Jan. 27.

"We're waiting for this date in hopes we can see them again," he said.

Forty-four percent of the 5,625 U.S. detainees who have faced trial since the Iraqi court was established in 2003 have been convicted, according to military figures. It isn't known how many death sentences have been handed down, but they are believed to be fairly common for security-related offenses.

Iraq's court system, like many in Europe, is inquisitional rather than adversarial.

Judges largely take on the role normally played by prosecutors in the United States. Initial hearings are key: An investigative judge decides the facts of the case, and weighs whether it should go to trial.

It's a system that traces its roots to Napoleon and is used by many countries in Europe.
The judiciaries in Jordan, Egypt, Yemen and Kuwait are closer to the American system.

Lebanon's has similarities with the Iraqi system, but Iraq currently has its unique complications.

The main courthouse, the jail and the judges and their families are ensconced within the new Law and Order Complex, which is surrounded by 12-foot blast walls on the edges of Baghdad's Shiite stronghold of Sadr City.

As of September, at least 31 judges had been slain since the U.S.-led invasion, according to the Iraqi Higher Judicial Council, which oversees the courts. More than 150 lawyers have been killed as well and many more have fled the country, according to the Iraqi defense lawyer.

"If you win the case, you will be targeted by the other side, but if you lose, your client will be the one who will kill you," he said.

He said his 39-year-old client was standing outside his home when a bomb exploded near an American military convoy in western Baghdad nearly two years ago.

"He was brought before an Iraqi judge for the first time last month, and it lasted only 15 minutes as the judge checked his information and read the charges against him," the lawyer said.

He predicted the next session would last no longer than 30 minutes and his client would be convicted --"probably three to five years in prison."

Mark Waller, a civilian attorney in Colorado and an Air Force reservist who served as a prosecutor in Iraq from March to July 2006, said the Iraqi system has a "common sense" foundation -- with one judge listening to both sides. But the investigative judge's wide powers -- similar to a U.S. grand jury -- also opens the system to corruption and shortcomings.

In one hearing, Waller recalled that the court reporter only wrote down what the judge instructed rather than make a full transcript. That document was then used as a critical element for the trial judges.

"In the U.S. we have an adversarial system ... prosecution, defense and a judge all work independently and challenge each other to come to the result," Waller said. "In Iraq, it's one person doing that."

Waller was also critical of the police-style role forced on soldiers who must undertake "evidence collection and building a case for criminal prosecution."

But complications arise in gathering testimony and accounts.

"And the biggest reason is because Iraqis are afraid. We couldn't get them to testify because they fear retaliation ... not to say it never happens," Waller said.

He also noted that detective work was secondary to the battle. "My role as a soldier was to keep myself safe and my buddies safe," he said. "I'm not necessarily thinking about evidence collecting and building."

Miranda Sissons, deputy director of the Middle East International Center for Transitional Justice, said the war's chaos has spilled into the courtroom.

"You still have a situation of 20-minute trials, based on a dossier with no witness or no meaningful defense," said Sissons, who monitored hearings before the Iraqi High Tribunal -- the country's highest court.

Ziad Najdawi, a Jordanian lawyer who helped lead Saddam Hussein's defense team, described Iraqi courts as "an anarchistic system which is confusing the judges themselves."
One concern, according to Negad el-Borai, director of the Group for Democratic Development based in Cairo, Egypt, is that long detentions without charges and the hectic trial system could become entrenched in Iraq.

"Judges won't be able to work under normal conditions," he said in an e-mail.

The Iraqi legal system allows for habeas corpus -- the right to court review of the legality of detention -- but it does not apply to security cases such as those of detainees in U.S. custody. The U.S. military says it reviews each detainee every six months, but no lawyers for the detainee are present and no evidence is presented on the detainee's behalf.

Jonathan Hafetz, a lawyer for the Brennan Center for Justice at New York, has represented two American citizens referred to the Iraqi court by the military. One is awaiting trial; the other, Muhammad Munaf, was accused of helping in the 2005 kidnapping of three Romanian journalists in Baghdad and sentenced to death by hanging.

"He didn't get anything that resembled a fair trial ... Nothing we saw gave us any confidence in the system," Hafetz said.

According to a defense filing in U.S. federal court, Munaf's entire trial -- death sentence included -- lasted no more than 90 minutes and "no evidence or witnesses were presented to the court."
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Associated Press writers Sinan Salaheddin, Hamid Ahmed and Sameer N. Yacoub in Baghdad; Carley Petesch and David B. Caruso in New York; and Jamal Halaby in Amman, Jordan, contributed to this report.