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Published online by Cambridge University Press: 15 December 2020
During times of military occupation following an armed conflict it is not uncommon for the victors to implement mass detention programmes aimed both at providing security and bringing criminals to justice. International human rights regimes serve as overarching guidance for these programmes but are subject to broad interpretations, so it is often unclear what regulations or laws should inform day-to-day operations. Military and civilian lawyers may find themselves practising in a foreign jurisdiction for which they have no training or experience, let alone licensure. Law enforcement officers and military police are forced to adapt long-held practices to a new environment. Questions arise as to the rights that detained individuals possess, as these programmes frequently combine rules from different legal systems with no clear authoritative hierarchy. Attention is focused on the treatment of detained individuals with far less emphasis placed on their due process rights or other fundamental legal freedoms. This article examines one such instance, the US detention programme in Iraq, and highlights the numerous ethical and professional conflicts presented when members of one justice system are transplanted into another without proper preparation and background.
Dr Brugnoli is Associate Vice President and Executive Director for Global Affairs at West Virginia University, United States. In addition to her experience in law and higher education, she has served on active duty and as a member of the reserve component for the United States Air Force Judge Advocate Corps for 16 years. She appreciates the early readings and feedback of Professors Jena Martin and Amy Cyphert of the WVU College of Law and the ongoing support of her Academic Avengers team. Also, many thanks to Professor James Friedberg for his ongoing support over the past 20 years and for all the recommendations for the author's visit to Jerusalem; Amber.Brugnoli@mail.wvu.edu.
1 US Department of Defense, ‘DoD News Briefing – Secretary Rumsfeld and Gen. Pace’, 22 January 2002, https://archive.defense.gov/transcripts/transcript.aspx?transcriptid=2254.
2 There have been numerous attempts to challenge this decision within the US courts, most recently in August 2020: Al Hela v Trump, No 19-5079, 2020 US App. LEXIS 27446 (DC Cir. 28 August 2020).
3 ‘Amnesty International Alleges Detainee Abuse at Guantanamo Prisons’, PBS News Hour, 3 June 2005, https://www.pbs.org/newshour/show/amnesty-international-alleges-detainee-abuse-at-guantanamo-prisons.
4 Human Rights Watch, ‘US: Respect Rights of Child Detainees in Iraq – Children in US Custody Held Without Due Process’, 19 May 2008, https://www.hrw.org/news/2008/05/19/us-respect-rights-child-detainees-iraq.
5 Open Society Justice Initiative, ‘Globalizing Torture: CIA Secret Detention and Extraordinary Rendition’, Feb. 2013, https://www.justiceinitiative.org/publications/globalizing-torture-cia-secret-detention-and-extraordinary-rendition.
6 The Abu Ghraib scandal in 2004 involved the abuse of Iraqi prisoners by 11 US Army soldiers. However, the reaction to these events focused on the behaviour of individual soldiers and their leadership, not with the overall detention process.
7 The rules of professional responsibility of each respective JAG Corps state that they are based on the American Bar Association's Model Rules of Professional Conduct (ABA Book Publishing 2013), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct. See US Department of the Army, Army Reg 27-26, ‘Legal Services: Rules of Professional Conduct for Lawyers’, 28 June 2018, https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN3662_R27_26_FINAL.pdf (Army Rules); Air Force Instruction (AFI) 51-110, ‘Air Force Rules of Professional Conduct’, 11 December 2018, Attachment 2, https://static.e-publishing.af.mil/production/1/af_ja/publication/afi51-110/afi51-110.pdf (Air Force Rules); and the Navy's rules of professional conduct, Department of the Navy, Office of the Judge Advocate General, ‘Professional Conduct of Attorneys Practicing under the Cognizance and Supervision of the Judge Advocate General’, JAG Instruction 5803.1E, 20 January 2015, https://www.jag.navy.mil/library/instructions/JAGINST_5803-1E.pdf.
8 Similar regulations exist across all branches; for an example see AFI 51-101, ‘The Judge Advocate Corps’, 29 November 2018, Ch 5, para 5.2.
9 eg, ibid para. 6.2.
10 ibid para 6.3.
11 ibid para 7.3.
12 See regulations cited at n 7.
13 ibid; see, eg, Air Force Rules (n 7) r 8.3.
14 See, eg, Air Force Rules (n 7) 29.
15 American Bar Association, Model Rules of Professional Conduct (n 7).
16 American Bar Association, Criminal Justice Standards for the Prosecution Function (4th edn, ABA Book Publishing 2017), https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.
17 ibid Standard 3-1.1(a).
18 ibid Standard 3-1.1(b).
19 ibid Standard 3-1.2.
20 ibid.
21 ibid Standard 3-1.3.
22 ibid Standard 3-5.4.
23 ibid Standard 3-3.3.
24 ibid Standard 3-1.4(c).
25 ibid Standard 3-6.
26 ibid Standard 3-5.1.
27 ibid Standard 3-6.1.
28 ibid Standard 3-7.3(a).
29 ibid Standard 3-7.3(b).
30 For an excellent analysis of due process in international criminal law, see DeFrancia, Cristian, ‘Due Process in International Criminal Courts: Why Procedure Matters’ (2001) 87 Virginia Law Review 1381CrossRefGoogle Scholar.
31 United States Constitution, 6th Amendment.
32 ibid 4th Amendment.
33 DeFrancia (n 30) 1393.
34 UN Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) [Contains text of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991] (3 May 1993), UN Doc S/25704, Annex.
35 See, eg, the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 14.
36 Toni M Fine, American Legal Systems: A Resource and Reference Guide (Anderson Publishing, a member of the LexisNexis Group 1997) Ch 1, https://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legal-system.page#:~:text=Case%20Law,genuine%20interest%20in%20the%20controversy.
37 ibid s C.
38 ProElium Law LLP, ‘Country Legal System Profiles: Iraq Legal Profile’, https://proeliumlaw.com/iraq-legal-country-profile.
39 Fine (n 36) s C, para 2.
40 Dan E Stigall, ‘Iraqi Civil Law: Its Sources, Substance, and Sundering’ (2006) 16 FSU Journal of Transnational Law and Policy 1.
41 Glendon, Mary Ann, Carozza, Paolo G and Picker, Colin, Comparative Legal Traditions in a Nutshell (3rd edn, Thomson-West 2008) 101Google Scholar.
42 ibid. Statistics show that approximately 98 per cent of criminal cases in the US are resolved through plea deals rather than trials.
43 Glendon, Carozza and Picker (n 41).
44 Marr, Phebe, The Modern History of Iraq (3rd edn, Westview Press 2012) 139Google Scholar.
45 Clint Williamson, ‘Information Memo to Ambassador Bremer, Subject: “End of Mission Report”’, 20 June 2003.
46 CPA Order No 7: Penal Code (2003). In addition to his authority as head of the CPA, Bremer also cited relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws of war. The Code of 1969 was in fact fairly liberal and resembled a US criminal code in many respects: offences were listed with the elements required to prove guilt and punishments were appropriate, given the nature of the relevant offence. As many Iraqis would joke to me during my time in their country, ‘[o]ur laws are good. Saddam just never followed them’.
47 CPA Order No 13: The Central Criminal Court of Iraq (2004), s 18.
48 ibid s 5.
49 CPA Order 13 (n 47) s 17.
50 ibid s 19.
51 Commanding General CJTF-7 and Senior Advisor Ministry of Justice, Action Memo to the Administrator, ‘Subject: The Investigation and Prosecution of Terrorism and Organized Crime in Iraq’, 21 September 2003, in James Dobbins and others, Occupying Iraq: A History of the Coalition Provisional Authority (RAND Corporation 2009) 160.
52 Donald Rumsfeld, Memo to Ambassador Bremer and General John Abizaid, ‘Subject: Prosecuting Iraqis for Security Offenses Against the Coalition’, 20 October 2003, in Dobbins and others, ibid 164.
53 Paul Bremer, Memo to Secretary Rumsfeld, ‘Subject: Detainee Operations in Iraq’, 12 May 2004.
54 Michael J Dittoe, Email to Jessica LeCroy, ‘Subject: Back Brief Deputy Secretary of Defense’, 26 October 2003, in Dobbins and others (n 51) 152.
55 CPA Order No 3: Criminal Procedures (2003).
56 ibid (emphasis added).
57 Jones, Seth G, Establishing Law and Order after Conflict (RAND Corporation 2005) 136–45Google Scholar.
58 Interview with Clayton McManaway, 22 July 2008, in Dobbins and others (n 51) 152. This is quite a damning accusation, given the overall poor performance of most US agencies during the reconstruction of Iraq.
59 Edward C Schmults, Info Memo to the Administrator, ‘Subject: Prisons Advise Lockdown Crisis Headed to Mission Failure’, 27 April 2004, in Dobbins and others (n 51) 153. It should be noted that the prison at issue was Abu Ghraib, the site of the prisoner abuse scandal that President George W Bush would refer to as ‘America's greatest defeat in the war on terror’.
60 CPA Headquarters, Cable to Secretary of Defense, ‘Subject: Update on Central Criminal Court of Iraq (CCCI) and Thoughts on Supplementing the CCCI Process’, 11 January 2004, in Dobbins and others (n 51) 165; Edward C. Schmults, Senior Advisor to the Ministry of Justice, Memo to Ambassador Bremer, ‘Subject: Release of 359 Prisoners’, 20 May 2004, in Dobbins and others (n 51) 165.
61 Amnesty International, ‘Iraq: Memorandum on Concerns relating to Law and Order’, July 2003, MDE 14/157/2003, 11.
62 Dobie MacArthur, Action Memo to Ambassador Bremer, ‘Subject: Detention Operations Recommendations’, 3 April 2004, in Dobbins and others (n 51) 167.
63 During my time in Iraq, one detainee's file indicated that he had been incarcerated for nearly four years with no court appearance. I was told he was an ‘intelligence asset’ and bringing him to court would harm the ‘relationship’ his interrogators were working to develop.
64 UNSC Res 1546 (8 June 2004), UN Doc S/RES/1546.
65 See, eg, description of the detention process and the role of US forces in Bill, Brian J, ‘Detention Operations in Iraq: A View from the Ground’ (2010) 86 International Law Studies 411Google Scholar. This is also true based on my work within the system in 2008.
66 Per UNSC Res 1546 (n 64), MNF-I was granted authority to use all means necessary to ensure the security and stability of Iraq, at the invitation of its interim government.
67 Bill (n 65) 418.
68 This was my personal experience based on discussions with soldiers assigned to the TIFs and when making inquiries about a detainee's case status.
69 Facts presented during briefings on the detention process as part of my pre-deployment training at Fort Dix, NJ, in November 2007.
70 Similar radicalisation and further criminalisation occur in US prisons, so this problem was not unforeseeable. A colleague of mine at the CCCI Liaison Office was specifically assigned to handle cases arising from within the TIFs. These crimes were often especially violent and typically involved 10 or more detainees.
71 Ironically, during Bremer's tenure, he ordered the creation of a Human Rights Ministry Office at Abu Ghraib to ‘provide transparency and information, and counter Iraqi fears’ and to serve as ‘a showcase for the high standard of detention that the U.S. military provides’: Paul Bremer, Memo to Secretary Rumsfeld, ‘Subject: Abu Ghraib Prison’, 19 June 2003, in Dobbins and others (n 51) 169.
72 Department of Defense Directive 2310.01E (DoD Directive), http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf.
73 ibid para 2.1.1.
74 ibid para 2.1.4.
75 ibid para 2.2.
76 ibid para E4.1.3.
77 Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135.
78 DoD Directive (n 72) s 4.8.
79 CPA Order 3 (n 55) s 6.2.
80 ibid s 6.3.
81 Bill (n 65) 421. Most of the orders are classified, making them unavailable for direct citation.
82 ibid.
83 Based on my personal observations after handling more than 300 cases at the CCCI.
84 ibid.
85 Based on my personal conversations with dozens of capturing troops during my time in Iraq. Every supervising officer with whom I spoke ignored these policy violations because they knew the photographic evidence would be important later in the detention process.
86 In one case on which I worked the local unit proved to be quite innovative. They made the equivalent of ‘Wanted’ posters for a group of detainees and stated they would provide security and transportation for any Iraqi who wished to testify against them. After vetting the volunteers for accuracy and credibility, 17 local citizens were transported to the CCCI.
87 UNGA Res 43/173 (9 December 1988), UN Doc A/RES/43/173 (UN Principles).
88 ibid.
89 ibid.
90 ibid.
91 CPA Order No 3 (n 55).
92 DoD Directive (n 72).
93 Based on my personal experience as a TF 134 attorney handling cases from Iraq's northern region (south of Kurdistan).
94 Bill (n 65) 425. My personal conversations with Mag Cell attorneys during my time in Iraq also confirms this.
95 ibid 426.
96 Bill (n 65) 431.
97 ‘Stone Assumes Command of MNF-I Detention Operations’, Centcom Public Affairs, 9 May 2007, https://web.archive.org/web/20070927005132/http://www.centcom.mil/sites/uscentcom2/Lists/Current%20Press%20Releases/DispForm.aspx?ID=4856.
98 CPA Order No 13 (n 47) s 17.
99 ibid s 14.
100 CPA Order No 13 (n 47) s 104.
101 Based on my personal knowledge from conversations with the attorney who handled juvenile cases for the CCCI.
102 TF 134 linguists were all civilians contracted to work for the coalition. Most were US citizens who had previously immigrated from the Middle East. Several had been away from the region – and Iraq, in particular – for so long that various dialects were challenging for them. No linguist assigned to the CCCI-LO was a professional interpreter; rather, their professions ranged from schoolteacher to mechanic. The linguist with whom I worked most often had responded to an advertisement for linguists in his neighbourhood paper in Chicago.
103 Bill (n 65) 437.
104 For a comprehensive review of solitary confinement and how it can legally be used only for a short period of time in the US, see Alexandra Harrington, Judith Resnik and Anna VanCleave, ‘Regulating Restrictive Housing: State and Federal Legislation on Solitary Confinement as of July 1, 2019, A Research Brief’, The Liman Center at Yale Law School, https://law.yale.edu/sites/default/files/area/center/liman/document/restrictive_housing_legislation_research_brief.pdf.
105 For a detailed explanation of the law and its purpose, see George Sadak, ‘U.S. Forces and Iraq Succeed in Implementing General Amnesty Law’, 25 September 2008, https://www.loc.gov/law/foreign-news/article/iraq-u-s-forces-and-the-iraqi-government-succeed-in-implementing-the-general-amnesty-law.
106 I witnessed these lines of women personally and spoke with some of them in March 2008.
107 UNSC Res 1546 (n 64) para 12.
108 This case was presented for an investigative hearing in March 2008.
109 To my knowledge, this was the first time ballistics evidence was presented in an Iraqi court.
110 For a first-hand account of how the coalition attempted to introduce the right to remain silent see James Philipps, ‘Miranda in Iraq’, 14 February 2009, https://kandulawyer.com/2009/02/14/iraqi-miranda-rights.