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On January 5, 2012 President Barack Obama announced a shift in the U.S.’s military size and ambitions, proposing a 14% reduction in troops and a $487 billion in budget cuts over the next ten years. Meanwhile, the American military was to retain full spectrum capabilities. “We have to remember the lessons of history,” the President declared, “We can’t afford to repeat the mistakes that have been made in the past…” Yet, historical experience and precedence has shown that certain tasks, such as nation building, are impossible to perform, regardless of the amount of money and manpower spend on the task.
In May 2004, New Yorker Magazine published an extensive report, including pictures, of the abuses of Iraqi prisoners in the Baghdad prison of Abu Ghraib. Off the revelations from the prison, Former Secretary of Defense Donald Rumsfeld maintained that, “We were still trying to regain the trust of the Iraqi people – [a] task that had been made more difficult not only by a long and heavy-handed occupation but by the crimes of a few military guards at a prison called Abu Ghraib.” Such disclosure, however, incited media investigations that ultimately revealed a much larger problem haunting US occupational forces in Iraq – the detainee program. The program appeared to be working directly against US goals in the Iraq campaign as it disabled a government that desperately needed to be enabled. Leaving legal aspects aside for legal scholars, this paper first focuses on the detainee program’s negative impacts, namely, on the world image of the United States, the local perception of US forces, and the extension of the campaign’s timetable. Then, the paper displays a number of lessons that can be drawn from experiences with the detainee program, and ultimately suggest specific ways in which the United States can aid the rebuilding of a host nation’s legal system in future peace operations.
U.S. foreign policy has been heavily based on the higher moral values of the American people. Human rights, democracy and the rule of law are but a few examples of the principles that enter the rhetoric of American diplomats and political leaders. When President George W. Bush gave the order on 19 March 2003 to commence Operation Iraqi Freedom, he did so “…for the peace of the world and the benefit and freedom of the Iraqi people…” Yet, the detainee program can hardly be considered a tool that advances such a cause. The detention of tens of thousands of Iraqi men without charges pressed against them, and without any form of due process in place, made it difficult for the United States to seemingly advance its principles of human rights and the rule of law. How could the most powerful and just nation on earth demand the guarantee of human rights and dignity it was itself not willing to perform? If willing but unable, how could a developing nation that had experienced three major conflicts in thirty years be able to do the same?
Even more important was the impact that the detainee practices had on the Iraqi population overall. Although many detainees were active members of the insurgency, countless others faced similar consequences despite their lack of association with the insurgency. What made the program even worse was the practice of denying information about the status or whereabouts of detainees to their families. An example of such a case was described in detail by The Wall Street Journal deputy bureau chief for the Middle East and Africa Fernaz Fassihi in her book, Waiting for an Ordinary Day. In Chapter 15, describes the story and arrest of Najim Abdullhussein and his son Qutaibah, and the proactive search for them initiated by Najim’s wife immediately after the night raid that led to her husband’s arrest. She visited US bases, Iraqi police stations and the infamous Abu Ghraib prison. Everywhere she went she received dismissive answers from officials: they did not know where her husband was, what he was charged with, or when he would be released. The Abdullhusseins were released only after their story broke out on the front page of the The Wall Street Journal more than a year later. Their case is only one of countless unrecorded detentions. The damage done by them to the perception of Iraqis of the American forces is summarized by one of Najim’s neighbors who stated: “Now we know the real face of Americans. They arrest even people who work with them. They are not here to give us freedom and democracy.”
After Najim’s arrest, it becomes clear that there was no attempt made by judicial authorities to investigate the extent of his involvement with insurgent groups. Failure to conduct such judicial action can be explained by three variables. One is the insurgent-based doctrine that was in place during the time when Najim was detained. For the first several years after the fall of Baghdad, success in Iraq was measured by the number of suspected insurgents killed or captured. Beyond that, the interest in detainees was as far as useful information about the whereabouts of other insurgents could be obtained. Furthermore, there lacked a functioning justice system through which suspected insurgent detainees could be prosecuted, while their release without concrete information was rightfully perceived as too high a risk. Thus, occupational forces faced a situation in which they had to maintain a large number of people who could neither be prosecuted nor released. Such a dilemma led to the second and equally important reason for the shaping of the detainee program: the lack of resources and manpower to perform all required duties. Second, after the disbandment of Iraqi security forces in 2003, American and coalition forces were responsible for providing the security and management of the country. Such a task included not only fighting an active insurgency and patrolling streets daily, but also protecting high-valued targets, and ensuring the operation of facilities, as well as the economic, democratic and institutional development of the country. At the height of US military presence in post-war Iraq, during the Surge there were about 160 thousand US troops on the ground, while the population of Iraq was estimated to be about 29 million. This puts a rough estimate of 1 US soldier for every 180 Iraqis. For comparison purposes, the New York Police Department employs about 34,500 uniformed police officers to maintain order in an urban center of about 8 million people, or 1 officer for every 230 New Yorkers. That is excluding the Department of Corrections (responsible for the operation of jails and prisons), the Sheriff’s Office, New York State Police, FBI, as well as State and National Guard units available during crises. In short, the number of US forces on Iraqi grounds was significantly below the minimum requirement to perform the tasks they were responsible for. Finally, and most importantly, the conscious decision was made in the highest levels of government that “captured members of the enemy” would be detained in a manner so as to prevent them from returning to the battlefield, and where appropriate, such detainees would be transferred to Guantanamo. Michael Mukasey, US Attorney General from 2007-2009, defended this decision in the pages of The Harvard Journal of Law and Politics, reasoning that alien enemy combatants captured and detained abroad did not have the right to habeas corpus. While such a statement might be valid legally, there was no attempt to separate the enemy combatants from the general detained population.
Once many of the challenges during the first years after the Iraqi invasion were realized, significant steps were made to improve the poor conditions. On the one hand, since the development of Field Manual 3-24 Counterinsurgency in 2006, the United States Armed Forces shifted their tactical approach to securing the strategic objectives of American involvement in Iraq. In other words, the insurgency-based operational focus, in which the goal was to capture or kill insurgents, changed to focus more on population-based operations, where the primary objective was to provide security for the population. The latter tactic was commonly referred to as Hearts and Minds. Winning the hearts and minds of the population, the Field Manual mandated, involves “separating the leaders, cadre, and combatants from the mass base through information operations, civil-military operations, economic programs, social programs, and political action.” However, while this new approach to the occupational duties of American forces was a significant leap in the right direction, the manual separated short-term and long-term in a manner that is questionable. Most significantly, Rule of Law was left to the host nation’s institutions which supposedly would have developed by Stage Three. Thus, the effects of the doctrinal change that was brought about with the introduction of FM 3-24 on the detainee program remained questionable at best, as there was no functioning Iraqi justice system in 2006.
During that time, many responsibilities for the government of Iraq transitioned over to developing indigenous institutions. Such institutions took charge for running the country with all rights and responsibilities associated. This made additional resources available and allowed for a drawdown of US forces and a shift of US focus from Iraq to Afghanistan. Although the transition of powers took several years, progress was slow due to a variety of reasons, including immaturity of institutions and corruption. As a result, the US government continued to place pressure on the Iraqi government to show progress in all critical areas – economics, governance, civil rights and rule of law, among others. However, the actions of US forces as part of the detainee program, the night raids and prolonged detention, coupled with the lack of information about detainees, systematically worked to undermine the authority of the same government American forces were trying to build. In an environment where a foreign military force is able to operate independently and without the knowledge and approval of the indigenous authorities, the legitimacy of those institutions is put into question. This sidetracked the efforts to establish the legitimacy of the Iraqi government, alienated the local population, and as a result, US forces had to extend their stay in the country beyond a warranted time.
The judicial system, like all other government institutions will be completely destroyed in the event of an external intervention. It is likely, as the history of international interventions teaches us, that such interventions were the result of the lack of government institutions. The options available for the US to pursue such a case - where international forces will most likely not be occupiers but assistants for a transitional government established prior to the intervention – will be very limited, given the existence of a sovereign government. In one sense, US involvement in peace operations in the future will be in situations that would somewhat resemble post-Surge Iraq. In such conditions, a developing judicial system will need three basic elements: trained jurists, scientific capabilities to process evidence, and proper correctional facilities for carrying out sentences. The US can play a critical role in developing all of these needs.
Addressing the first one - trained jurists - the United States could provide the opportunity to train jurists in American universities. Scholarships that are made available to the indigenous population to study in US law schools in exchange for a number of years of committed work in their country upon graduation is one possibility. The precedent for such a program already exists in the J-1 exchange program of the US State Department. Such a program will expose individuals to the American legal system and will give them the opportunity to explore the subject of law and its importance independently from the hardships of a post-conflict developing nation. The cost of such a program, compared to the overall cost of American engagement in peace operations, or particular projects thereof, will be minimal. It can be further reduced if the US government seeks the cooperation of the private sector, including scholarships provided by educational institutions, as well as NGOs to expand fundraising activities in order to encompass these de facto cadre development projects.
Assisting indigenous institutions in developing the laboratorial means to gather and process evidence related to criminal investigations is yet another avenue for the American government to enabling the indigenous judicial system. Many a crime have gone unpunished because of the lack of physical evidence to do so, while the unconfirmed hearsay have put individuals behind bars without concrete proof, in the American sense of beyond a reasonable doubt. This concept of beyond a reasonable doubt, while a legal term, is one directly associated with the proper administration of justice. Without it, there can be no real justice and rule of law. Thus, the statistical number of jurists educated in the top American or western law schools will be irrelevant, if the police do not have the tools to gather and analyze evidence in a scientific way. The assistance of the American government in this particular realm can be threefold. First, the United States can provide - either through aid or on credit - the physical equipment needed to outfit modern criminological laboratories. Second, indigenous technicians can be trained in the United States to properly utilize this equipment. The same principle of the J-1 program could be employed here. Third, American technicians could be stationed in the laboratories in an advisory capacity. These three steps will ensure that criminological laboratories are not only properly equipped, but that there are also well-trained technicians to work with that equipment, and that their training is not limited to a few weeks of courses, but that there is also follow-up and practical training.
Finally, a humane prison system would need to be created. More specifically, facilities will be needed to house prisoners. The pictures from Iraq of men crammed into rooms are all too familiar. Petty criminals are put into the same room as violent insurgents and terrorists, exposing those individuals to dangerous ideologies that can radicalize them in a manner impossible on the outside. This was especially the case during the time when American forces ran such facilities.
In conclusion, no legal system is immune to making wrongful arrests, even in peacetime. During war, especially the counterinsurgency strategy adopted by US forces in Iraq, detention of suspected enemy combatants is even warranted. Soldiers on the ground are not criminal investigators, nor are they forensics experts. Detaining a suspect allows additional time for careful screening of the individual, which should in turn allow for a more educated decision on one’s involvement with insurgent activities. If determined that the individual is innocent, their release would be in order. In other words, a system that is involved in taking away the freedom of individuals will have sufficient barriers to correct mistakes made by previous steps of a judicial proceeding – from the reception of information, through detention, to sentencing. Such a system did not exist in Iraq while the United States was governing Iraq; neither did it exist in any meaningful way during the transitional period. As a result, large segments of the population were alienated and the legitimacy of the indigenous institutions undermined, while the inevitable surfacing of abuses of prisoners accelerated the world perception of the United States. It is highly unlikely that US forces will in the future be involved in an occupation like Iraq. However, peace operations will be likely and necessary, and American leadership critical. From Iraq we learned that justice transcends the boundaries of culture. It is only by enabling the local judicial institutions that will satisfy the yearning for justice. Such enabling can be achieved not by the point of the gun, but through education and cooperation between the indigenous population and the intervener.
 Julian Barnes and Nathan Hodge, “Military Faces Historic Shift,” The Wall Street Journal January 6, 2012.
 The White House, “Remarks by the President on the Defense Strategy Review,” January 5, 2012 (Available at: http://www.whitehouse.gov/the-press-office/2012/01/05/remarks-president-defense-strategic-review)
 Seymour M. Hersh, “Torture at Abu Ghraib: American soldiers brutalized Iraqis. How far up does the responsibility go?” in The New Yorker, (May 10, 2004).
 Rumsfeld, Donald. Known and Unknown: A Memoir, p. 541.
 Bush, George W., Decision Points, p. 223.
 Fassihi, Faarnaz. Waiting for an Ordinary Day, p. 150.
 Ibid., p. 147.
 CRS Report, US Forces in Iraq, Order Code RS22449, p. 4.
 CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/iz.html
 NYPD Website, Frequently Asked Questions, Question No. 1, http://www.nyc.gov/html/nypd/html/faq/faq_police.shtml#1
 Sam Roberts, “New York City’s Population Barely Rose in the Last Decade, the Census Finds,” New York Times March 24, 2011.
 Michael Mukasey, “National Security and the Rule of Law” in Harvard Journal of Law and Public Policy (Summer 2009; 32, 3), pp. 834-837.
 FM 3-24 Counterinsurgency, pp. 3-89.
 Ibid., pp. 5-6.