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Volume 51 — Issue 3 — Page 549
RGI NI A
18 1 9
Article
Iraq and the Military Detention
Debate: Firsthand Perspectives
from the Other War, 2003–2010
Robert M. Chesney
© 2011 by the Virginia Journal of International Law Association. For
reprint permissions, see http://www.vjil.org.
Iraq and the Military Detention Debate:
Firsthand Perspectives from the Other War,
2003–2010
ROBERT M. CHESNEY*
In this Article, I examine the law and policy of military detention
through the lens of After Action Reports produced by U.S.
military Judge Advocates and interviews with non-lawyer service
members directly involved with captures and detention in Iraq.
Drawing heavily on these primary sources, I seek to enrich the
context of the U.S. detention policy debate in general, and more
specifically to highlight and dispute several assumptions running
through that debate as it is currently conducted. The lessons
taught by the American experience in Iraq suggest, for example,
that detention policy progresses through a cycle in relation to
sustained overseas combat deployments: It begins with a
relatively discretionary approach premised on traditional law of
war authorities and administered directly by the United Sates,
but over time both legal and strategic considerations combine to
shift the focus to host state criminal prosecution and host state
administration of erstwhile detention facilities. As a
consequence, one should not assume that detention regimes and
facilities that may exist at one point in time in an overseas
combat setting will continue to be available over the long term.
The evolution of U.S. military practice and policy over the past
seven years in Iraq also calls into question the common
assumption that evidence-gathering and other activities
associated with criminal prosecution are entirely alien to and
incompatible with military training, doctrine, practice and
* Charles I. Francis Professor in Law, University of Texas School of Law. I am grateful to the
Department of Defense for its cooperation in the research supporting this article and would
especially like to thank Major Robert Barnsby, Captain Brian Bill, Lieutenant Colonel Jeff
Bovarnick, Captain Martin Evans, Colonel Renn Gade, Lieutenant Colonel Chris Jenks,
Lieutenant Colonel Charles Poché, Colonel Richard Pregent, Commander Trevor Rush, and
Lieutenant Colonel Daniel Tanabe. Matthew Wilson and Daniel Jackson provided outstanding
research assistance.
550
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 culture, as well as the related assumption that the realms of
criminal law enforcement and military detention without
criminal charge cannot coexist. These lessons have direct
implications for the future course of U.S. detention policy and
practice in Afghanistan, and more generally help to reduce the
artificiality of the larger detention policy debate.
Introduction.......................................................................................... 552
I.
The Invasion Phase (March–April 2003): A Conventional
Beginning .................................................................................. 557
A.
The Clarity of Detention Authority in International
Armed Conflict ................................................................ 558
B.
The Broad Scope of Detention Authority in
International Armed Conflict .......................................... 559
C.
The Procedural Minimalism of the Geneva
Conventions ..................................................................... 560
D.
Law, Prevailing Strategic Assumptions, and Practice
in the Field ....................................................................... 562
II.
The Occupation Phase (April 2003–June 2004): Seeds of a
Hybrid Model ............................................................................ 564
A.
Preserving and Prioritizing the Security Internment
Model............................................................................... 565
B.
Reviving Iraqi Criminal Justice as an Alternative
Track ................................................................................ 566
C.
Practice in the Field: Continuity, Not Change................. 570
D. Misperceptions in the Field? ........................................... 572
III. The Mandate Phase (July 2004–December 2008): The
Impact of Changing Strategic Perceptions ................................ 574
A. Preserving the Security Internment Track ....................... 574
B.
The Two-Track System in the Early Mandate Phase
(July 2004–August 2007) ................................................ 577
1.
Screening at the Point of Capture: The Conduct
Versus Status Debate ............................................ 578
2.
Detention for Purposes of Short-Term
Interrogation? ....................................................... 579
3.
Post-Capture Screening and Slotting .................... 581
a.
Haphazard Screening at the Temporary
Holding Facility ......................................... 581
b.
Substantial Screening at the Theater
Internment Facility ..................................... 583
i.
Magistrate Cell Review ................... 584
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IRAQ AND THE MILITARY DETENTION DEBATE
ii.
IV.
V.
551
Combined Review and Release
Boards ............................................. 585
4.
Continuity of Practice and Perceptions in the
Field ...................................................................... 586
C.
Strategic Change and the Evolution of the Two-Track
System in the Late Mandate Phase (August 2007–
December 2008) .............................................................. 587
1.
Enhanced Process on the Security Internment
Track ..................................................................... 588
2.
Continued Support of the CCCI Prosecution
Track ..................................................................... 590
3.
Changing Perceptions and Practices in the Field . 591
The Security Agreement Phase (January 2009–Present):
Maximizing the Prosecution-Support Model ............................ 597
A. The Formal Demise of Security Internment .................... 599
B.
The U.S. Military as a Comprehensive Criminal Law
Support Service ............................................................... 601
1.
The Basic Elements of the “Prosecution-Based
Targeting” Model ................................................. 602
2.
Innovative Reponses to the Prosecution-Based
Targeting Model ................................................... 606
a.
The Prosecution Task Force....................... 607
b.
Other Innovations....................................... 610
C.
The Limits of the Prosecution Model .............................. 612
1.
The Persistent Problem of Classified
Information ........................................................... 613
2.
Finite Capacity...................................................... 614
3.
Intimidation .......................................................... 615
4.
Bias Against Americans ....................................... 617
5.
Forensic Evidence ................................................ 618
6.
Limited Receptivity to Out of Court Statements .. 620
7.
Iraqi Forces in the Lead at the Point of Capture ... 621
D.
The Persistence of De Facto Security Internment .......... 624
1.
Rump Security Internment in U.S. Custody ......... 624
2.
De Facto Security Internment in Iraqi Custody .... 627
Lessons Learned ........................................................................ 628
A.
The Impermanence of Military Detention Facilities
Overseas .......................................................................... 629
B.
Preserving and Building Military Capacity to Support
Prosecution ...................................................................... 632
C.
The Utility of the Security Internment Model and the
Likelihood of Convergence ............................................. 633
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[Vol. 51:549 Conclusion ........................................................................................... 634
“[T]ypically, immediate retaliation by the enemy would happen
if we were there [on objective] for over an hour. However, taking
the extra time typically meant that we were able to collect
enough evidence to put away the detainees for ten to fifteen
years.”
–1st Lt. Tyler Stegeman (Tank Platoon Leader, 1st Cavalry
Division, Baghdad October 2006 to January 2008)
INTRODUCTION
The endless post-9/11 debate regarding the U.S. military’s role in
relation to “detention policy” (that is, the various issues associated with
the capture, screening, incarceration, and disposition of individuals in
the context of combat or counterterrorism operations) is shot through
with flawed assumptions.1 It tends to assume, for example, that if the
factual and legal predicates for using military detention without criminal
charge can be established in the first instance, then for good or ill that
model can be sustained over the long term; that evidence-gathering and
other activities associated with criminal prosecution are alien to military
training, doctrine, practice and culture; and that a sharp and exhaustive
categorical distinction exists between the realm of criminal law
enforcement and the realm of military detention without criminal
charge. At the highest level of generality, moreover, it presupposes the
centrality of law — and by extension the significance of formal legal
change — to determining the current and future parameters of the
military’s role. Not coincidentally, it does all of this through the lens of
the Guantánamo Bay detention camp, focusing relentlessly on the
peculiar circumstances of the slightly less than 800 individuals who
have been detained there.2
1. This definition borrows from Executive Order 13,493, which in January 2009 established a
task force to develop policy options relating to the full range of issues associated with “the
detention, trial, transfer, release or other disposition of individuals captured or apprehended in
connection with armed conflicts and counterterrorism operations.” 74 Fed. Reg. 4901 (Jan. 22,
2009). In the interest of full disclosure, I note that I served as an advisor to that task force. The
views expressed herein are solely my own, however, and in no way should be taken to represent
those of the United States Department of Justice Detainee Policy Task Force or any other
government entity or official.
2. Names of the Detained in Guantánamo Bay, Cuba, WASH. POST,
http://projects.washingtonpost.com/guantanamo/ (last visited Nov. 11, 2010) (“The current
database of the 779 detainees ever detained at Guantánamo Bay is constantly updated whenever a
transfer of detainees is announced.”).
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IRAQ AND THE MILITARY DETENTION DEBATE
553
Few would doubt that the use of detention at Guantánamo matters, or
that it gives rise to complex questions of law and policy. But some
perspective is in order. The U.S. military has been deployed to Iraq for
more than seven years. During that time, it has held approximately
100,000 individuals in custody without criminal charge — this is more
than one hundred times the scale of detention at Guantánamo.3 Once we
look beyond Guantánamo to account for the neglected — yet far more
representative and extensive — experience of the United States in Iraq,
the weaknesses of the aforementioned assumptions come into sharp
relief.
First, and most significantly, the American experience in Iraq teaches
that the capacity to employ military detention without criminal charge
as a practical matter will decay over time. Regardless of whether such
detention is legally and factually warranted in the first instance, it
ultimately must be abandoned — at least where the detainees are held
outside the United States. Changing strategic circumstances —
including the dictates of counterinsurgency doctrine, the inevitable
assertion of sovereign prerogatives by the host nation, the political
infeasibility of importing detainees into the United States or
Guantánamo, and the political and diplomatic infeasibility of
maintaining covert detention facilities abroad — ensure it will be so.
Indeed, the United States is in the midst of experiencing this dynamic in
Iraq in 2010, and sooner or later, it will experience much the same thing
in Afghanistan.4
This insight is profoundly significant — yet rarely noted — for those
circumstances in which the United States would prefer that a detained
person remain incapacitated over the long term. For persons already in
custody, it suggests that the United States must plan against the
inevitable day when military detention ceases to be available. It further
suggests that the United States would be foolish to assume that the
currently available facilities in Afghanistan could provide a long-term
solution for detainees captured there, let alone detainees captured
elsewhere (including the remaining Guantánamo detainees). Long-term
incapacitation, on this view, requires a criminal conviction, transfer of a
detainee to the custody and control of a third country (for prosecution or
otherwise), or resort to lethal force, when legally permissible, in lieu of
capture.
3. See Caroline Alexander, Last U.S.-Run Prison Handed over to Iraqis Ahead of Withdrawal,
WASH. POST, July 15, 2010, http://tinyurl.com/24wmo3o (stating that about 100,000 detainees
have been held at Camp Cropper alone). 4. It may occur at Guantánamo as well, depending on how relations between the United States
and a post-Castro Cuba ultimately develop.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 Second, while the national debate in recent years has agonized over
the prospect of soldiers giving Miranda warnings on the battlefield,5 a
close look at developments in Iraq over the past several years reveals
that the U.S. military has already developed a substantial capacity for
law enforcement-related activities in the field. The U.S. military has
developed this capacity in response to strategic and practical pressures
in Iraq dating back to at least 2006. The resulting changes find
expression in the priorities of commanders in the theater of war and the
attitudes and practices of soldiers at the point of capture in the field.
Awareness of this development will not resolve all issues associated
with the prospect of military support for criminal law enforcement. For
one thing, these newly evolved capacities exist to support prosecution in
the Iraqi criminal justice system, and thus did not develop in the shadow
of the full range of procedural complexities that might follow if the endstate involved prosecution in an American court instead. Further, these
new capacities do not come without cost. For example, they are in
tension with considerations of force protection, at least from a shortterm perspective. The important point, however, is that these practices
exist today, and no discussion of military support for law enforcement is
complete without accounting for them.
The third major lesson from the American experience with detention
policy in Iraq is closely related to the second. The evolution of
detention-related practices in Iraq over the past seven years illustrates
that the range of options for military detention regimes is more
numerous, and less static in nature, than the narratives associated with
Guantánamo would suggest. The Guantánamo narratives highlight three
detention regimes: criminal prosecution, conventional military detention
of prisoners of war in accordance with the 1949 Geneva Conventions,
and the controversial use of combatant detention without conferral of
prisoner-of-war status.
In contrast, the vast bulk of military detentions in Iraq have occurred
under the rubric of an ad hoc civilian “security internment” regime that
borrowed from, but was not directly authorized by, the Fourth Geneva
Convention. The security internment system itself, moreover, evolved
through distinct phases, trending over time toward greater protection of
rights in keeping with the predictions of the convergence thesis.6 At the
5. See, e.g., Tom Brune, Issue over Soldiers’ Miranda Warnings to Terror Suspects,
NEWSDAY, Nov. 21, 2009, available at http://tinyurl.com/2fsr2pc; Stephen F. Hayes, You Have
the Right to Remain Silent . . . Mirandizing Terrorists, THE WEEKLY STANDARD, June 22, 2009,
available at http://tinyurl.com/5ur4fvx; Bridget Miller & Edwin Mora, Reading Miranda Rights
to Terrorists Is “Crazy” and “Stupid,” Says GOP Congressman, CNSNEWS.COM, June 17, 2009,
available at http://tinyurl.com/26sbzmo.
6. See generally Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of
Criminal and Military Detention Models, 60 STAN. L. REV. 1079 (2008) (describing the
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IRAQ AND THE MILITARY DETENTION DEBATE
555
same time, the United States persistently supported the development of
the Iraqi criminal justice system as an alternative detention option for
dealing with insurgents and terrorists, demonstrating the plausibility of a
multiple-track approach, even in the context of a large-scale overseas
military deployment. The Guantánamo narratives’ portrayal of the array
of detention options appears artificially narrow and stultified in
comparison.
The fourth and final major lesson yielded by the American
experience in Iraq concerns the dynamic relationship among law,
policy, and strategic context. More specifically, it concerns the frequent
failure to account for that relationship in the context of the detention
policy debate. There is some tendency in the existing detention policy
debate to treat the relevant legal frameworks as exogenous and static —
that is, as deriving from sources independent of the context in which
those frameworks might be applied — and hence as resistant to the
evolutionary pressures that may arise in the course of application.
The Iraq narrative, in contrast, illustrates both the contextual
contingency and flexibility of the law relating to detention. That
narrative is, first and foremost, a story of policy change in response to
changing perceptions of strategic and operational necessity, occurring
within a legal context that itself evolves in both formal and informal
ways in response to those same perceptions. This is not to say that legal
restraints on detention policy are unimportant or simply a creature of
government preference, but rather that efforts to understand the law and
policy of detention without accounting for this dynamic are doomed to
failure.
These lessons — not to mention a host of more specific insights
regarding the neglected intersection among law, policy, and actual
practice in the field — have immediate implications for U.S. law and
policy in Afghanistan. As noted above, the Iraq experience is a stark
reminder that the United States cannot count on the perpetual existence
of a non-prosecutorial detention option in Afghanistan, so that we
should not look to Afghanistan to assist in shuttering Guantánamo. With
this insight in mind, the United States is arguably in the midst of an
effort to transform its detention practices in the Afghan theater along the
lines of its prior experience in Iraq. First, it is markedly enhancing the
procedural safeguards associated with the use of detention without
charge, responding to the same strategic incentive structure that
previously compelled such changes in Iraq.7 Second, it is doing what it
can to stand up a plausible Afghan prosecution alternative, as was also
procedural and substantive convergence under the criminal and military models of detention).
7. See, e.g., Doug Stanton, Postcard from Parwan, TIME, Aug. 16, 2010, at 6.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 done in Iraq.8 The Iraqi experience suggests both the utility and the
difficulty of succeeding in that effort.
These lessons cannot be gleaned merely by referencing primary legal
sources (treaties, statutes, departmental regulations and directives, and
so forth) or statistics (the number of persons held, the number
prosecuted, etc.), though these elements have their place. The story
instead lies primarily in the granular experiences of the Judge
Advocates (JAs) and non-lawyer servicemembers who have directly
participated in the capture, detention, and prosecution of individuals in
Iraq over the past seven years.
In an effort to capture those experiences, I have reviewed a large
body of After Action Reports (AARs) that have been systematically
collected by the Army’s Center for Law and Military Operations. In
general, AARs constitute first-hand written accounts from JAs, of
varying levels of seniority and types of responsibility, who have
recently returned from deployment abroad. They employ a standard
format: A single-sentence statement of an issue the JA’s unit or
command faced, followed by a paragraph or so of commentary on the
unit/command’s resolution of the issue and on the JA’s recommendation
regarding the lesson to be learned from the experience. As you might
expect, the AARs vary considerably in their level of detail, ranging
from generalized or even clichéd statements to detailed anecdotes
conveying sharp insights.
Having reviewed hundreds of AARs dating back to 2001, I find that
the collection of AARs dealing with capture- and detention-related
issues has become considerably more extensive in recent years, which
itself is symbolic of the progress the U.S. military has made with respect
to the detention policy learning curve in Iraq. The batch of AARs from
the 2008–2009 period — encompassing the dramatic change to
detention practices associated with the U.S.–Iraq Security Agreement,
discussed below — are particularly rich. This Article incorporates
commentary from units whose tours in Iraq ended as recently as
November 2009.
For all their utility, the AARs are limited in that they do not directly
convey the perspective of non-lawyer servicemembers who actually
engaged in the capture of persons who then became subject to one form
of detention or another. That perspective is critical, yet rarely examined
in legal scholarship. Soldiers and Marines engaging in the capture of an
individual do so in the shadow of the then-prevailing legal and policy
framework for detention operations, and any analysis of that framework
8. See, e.g., Brig. Gen. Mark Martins, Int’l Sec. Assistance Force: Afg., ISAF Press Briefing
(June 16, 2010), available at http://tinyurl.com/24busnd.
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IRAQ AND THE MILITARY DETENTION DEBATE
557
that fails to account for its impact on their behavior in the field — and
vice-versa — is incomplete in an important sense. In an effort to
account for this perspective, I have interviewed and gathered personal
accounts from servicemembers of varying ranks, specialties, and periods
of service.
The pages that follow divide into two stages. Parts I and II, covering
the invasion and occupation phases respectively, are largely
introductory. I aim to establish a baseline against which to appreciate
the changes that occurred in later years. Part III encompasses the
“mandate period” ranging from mid-2004 to the end of 2008. During
that period, the U.S. military detained tens of thousands of individuals
without criminal charge as “security internees” under the rubric of an ad
hoc legal regime established via the UN Security Council, while
simultaneously developing an alternative detention track involving
prosecution in the reemerging Iraqi criminal justice system. Part IV
examines detention law and policy in the “Security Agreement” era,
beginning at the outset of 2009 and continuing to the present day.
Driven by changing strategic circumstances and associated diplomatic
pressures, this regime foregoes security internment authority as a formal
matter (though detention without trial persists for some persons in both
Iraqi and U.S. custody) in favor of Iraqi criminal prosecution. Part V
concludes by distilling the lessons that these events hold for the ongoing
detention law and policy debate.
I.
THE INVASION PHASE (MARCH–APRIL 2003): A
CONVENTIONAL BEGINNING
At first blush, the “invasion phase” of the American experience in
Iraq appears to be of little relevance to the detention policy debate. The
legal framework applicable to detention operations at that point was
relatively clear and uncontroversial, and policymakers at that stage
clung to the assumption that our military involvement in Iraq would be
brief and limited primarily to conventional combat operations.9 Yet
these very features make the invasion phase an important part of the
subsequent story. The institutional, policy, and legal challenges that
followed stand in much sharper relief when contrasted with the baseline
of the invasion phase.
9. On the pre-war assumptions and subsequent resistance to the idea that an insurgency was
emerging, see generally THOMAS E. RICKS, FIASCO: THE AMERICAN MILITARY ADVENTURE IN
IRAQ (2006).
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A.
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 The Clarity of Detention Authority in International Armed
Conflict
One of the most striking features of the invasion phase is the clarity
and flexibility of the legal framework associated with detention at that
stage. Nothing about that framework placed pressure on the U.S.
military to explore new models of training, policy, practice, or
institutional arrangement in relation to detention.
The primary source of authority in domestic law for the use of
military force in Iraq was the Authorization for Use of Military Force
(the Iraq AUMF) enacted by Congress in October 2002 (albeit
supplemented by an implied claim of inherent executive authority to act
under Article II of the Constitution).10 The Iraq AUMF referred to the
“necessary and appropriate” use of the armed forces against Iraq, but
said nothing affirmative about detaining anyone without criminal
charge.11 In that respect the Iraq AUMF was identical to the September
18, 2001 AUMF (the 2001 AUMF) through which Congress authorized
the President to use military force against those responsible for the 9/11
attacks and those who harbor them.12 While the subsequent use of
military detention under color of the 2001 AUMF has been a source of
constant controversy, nothing comparable occurred when the United
States employed military detention in Iraq. Why?
At least part of the answer lies in the nature of the military activities
undertaken under these statutes and how readily these activities can be
depicted as implicating the detention-related rules associated with the
law of armed conflict (also known as the laws of war or international
humanitarian law). The invasion of Iraq unquestionably gave rise to a
state of armed conflict, and that armed conflict unquestionably was
“international” in nature within the meaning of Common Article 2 of
the 1949 Geneva Conventions.13 As such, the full body of the 1949
Geneva Conventions applied.14 The United States did not argue
otherwise, did not take controversial positions regarding the
interpretation and application of the 1949 Conventions in the Iraq
context (at least not at the invasion stage), and did not invoke this
10. Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107243, 116 Stat. 1498 (2002); Statement on Signing the Authorization for Use of Military Force
Against Iraq Resolution of 2002, 2 PUB. PAPERS 1814 (Oct. 16, 2002).
11. Authorization for Use of Military Force Against Iraq Resolution of 2002 § 3(a).
12. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
13. See Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III] (defining “international armed
conflict” to include, inter alia, conflicts between two or more “high contracting parties” to the
Conventions); Julie Long, What Remedy for Abused Iraqi Detainees?, 187 MIL. L. REV. 43, 55–
56 (2006).
14. See Long, supra note 13, at 55–56.
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IRAQ AND THE MILITARY DETENTION DEBATE
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authority for detentions occurring away from Iraq itself. Suffice to say
that there is much debate as to whether these conditions also have been
met with respect to many detentions undertaken under the rubric of the
2001 AUMF.15
Why precisely should any of this matter? Because unlike the generic
language of the 2001 and Iraq AUMFs, the 1949 Geneva Conventions
refer explicitly and affirmatively to the use of military detention without
criminal charge — thus reducing or eliminating controversy when a
state premises its detention operations on such treaty authorities. To be
sure, a state might argue that comparable detention authorities apply as
a matter of the customary law of war or otherwise, even where the
Conventions themselves are inapplicable, as a plurality of the Supreme
Court appeared to accept in Hamdi v. Rumsfeld.16 The important point,
however, is that this debate does not even arise where the treaty
provisions apply.
B.
The Broad Scope of Detention Authority in International
Armed Conflict
The Geneva Convention system contemplates two distinct models of
detention without criminal charge during international armed conflict.
The most familiar is the language in the Geneva Convention (III)
Relative to the Treatment of Prisoners of War (GC III) authorizing
detention of prisoners of war (POWs) for the duration of the
hostilities.17 This regime enabled the U.S. military to detain members of
the Iraqi armed forces without criminal charge during the invasion
phase, as those individuals qualified for POW status simply by virtue of
their membership status.18 But the state’s power to detain without
criminal charge under the Geneva system is not restricted to those who
may claim POW status when captured.
15. A comprehensive bibliography of this subject would run for a dozen pages or more.
Selected examples include Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization
and the War on Terrorism, 118 HARV. L. REV. 2047 (2005); Ryan Goodman, The Detention of
Civilians in Armed Conflict, 103 AM. J. INT’L L. 48 (2009); Derek Jinks, The Applicability of the
Geneva Conventions to the “Global War on Terrorism,” 46 VA. J. INT’L L. 165 (2005); Gabor
Rona, Legal Issues in the “War on Terrorism” — Reflecting on the Conversation Between Silja
N.U. Voneky and John Bellinger, 9 GERMAN L.J. 711 (2008); John C. Yoo & James C. Ho, The
Status of Terrorists, 44 VA. J. INT’L L. 207 (2003).
16. 542 U.S. 507, 519 (2004) (holding that detention of enemy fighters for the duration of
hostilities is a “fundamental incident” of warfare, in the context of a suspected Taliban fighter
being held without POW status).
17. See GC III, supra note 13, arts. 21, 118 (referencing detention of POWs for the duration
of hostilities).
18. See id. art. 4(a)(1) (entitling the members of a state party’s armed forces to POW status
upon capture).
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 Though it receives far less attention, the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War (GC IV)
contemplates the non-criminal detention of non-POWs in a broad set of
circumstances.19 Under the Geneva Convention system states may
intern non-POWs without criminal charge in at least some international
armed conflict settings — including armed occupations, for example —
“for imperative reasons of security.”20 GC IV does not attempt to define
what counts as a threat sufficient to warrant internment, though the
International Red Cross’s commentary on the treaty suggests:
[A] belligerent may intern people . . . if it has serious and
legitimate reason to think that they are members of organizations
whose object is to cause disturbances, or that they may seriously
prejudice its security by other means, such as sabotage or
espionage . . . .
. . . [T]he State must have good reason to think that the person
concerned, by his activities, knowledge or qualifications,
represents a real threat to its present or future security.21
Taken together, the substantive scope of the POW and security
internee regimes is sweeping. They reach conventional enemy armed
forces, irregular forces, and support networks alike — and perhaps
more. In circumstances where it is not controversial to invoke these
non-criminal detention schemes, one should not expect to see much in
the way of objections to a state’s use of them. And, indeed, one did not
see such criticisms during the invasion phase of the American
experience in Iraq.
C.
The Procedural Minimalism of the Geneva Conventions
The relative lack of controversy associated with non-criminal
detention during the invasion phase also reflects the paucity of
procedural safeguards that the 1949 Geneva Conventions impose on the
use of POW detention and security internment. GC III’s treatment of the
procedural safeguard issue is skimpy. The single relevant provision is
GC III Article 5, which provides that a “competent tribunal” must be
19. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. The definition of persons
protected by GC IV also contemplates that there can be some individuals in an international
armed conflict who obtain neither the benefits of POW status nor the benefits that GC IV accords
most civilians. See id. art. 4 (excluding, for example, persons who are citizens of co-belligerent
states or neutral states with normal diplomatic relations with the detaining power).
20. Id. art. 78; see also id. arts. 27, 42–43 (approving of internment without criminal charge
for non-POWs posing a security threat).
21. COMMENTARY: IV GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN
PERSONS IN TIME OF WAR 257–58 (Jean S. Pictet ed., 1958) (commenting on GC IV art. 42).
2011]
IRAQ AND THE MILITARY DETENTION DEBATE
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convened to determine whether a person is entitled to the benefits of
POW status — but only where the detainee has participated in hostilities
and the detaining power is proposing to deny POW status, exposing the
person to prosecution merely for having fought.22 GC III does not
otherwise require any particular processes to be employed in the course
of determining who may be detained for the duration of hostilities. Even
in the “unlawful belligerent” scenario anticipated by Article 5, it does
not specify any particular safeguards beyond the undefined “competent
tribunal” requirement. There is nothing by way of a right to counsel, a
confrontation right, or a right to be present.23 All that one can say with
confidence based on the drafting history and the commentaries
published by the International Committee of the Red Cross is that the
aim was to prevent the capturing unit from making a battlefield
determination that a detainee does not deserve POW status.24 Notably,
nothing in Article 5 or elsewhere in GC III purports to bind the state in
its determination of how, if at all, to address the possibility that a person
was simply an innocent bystander or otherwise a case of mistaken
identity.
The situation with respect to security internment is comparable. GC
IV merely specifies that a security internee is entitled to a prompt appeal
and recurring review,25 but it does not purport to identify procedural
safeguards that states must employ in making the initial determination
or in conducting subsequent reviews.
U.S. military regulations expand on these protections as a matter of
policy, though the resulting systems remain far removed from anything
resembling criminal process. According to Army Regulation 190-8 (AR
190-8), GC III Article 5 tribunals shall consist of three commissioned
officers, but none need be a lawyer.26 The tribunal has authority to
determine not only whether a person should receive POW status but
also whether a person is in fact an innocent civilian rather than an
unlawful participant in combat.27 The detainee has the right to call
witnesses if they are reasonably available and to testify on his or her
22. GC III, supra note 13, art. 5.
23. Id.; COMMENTARY: III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF
PRISONERS OF WAR 77 (Jean S. Pictet ed., 1960) (citing II-B FINAL RECORD OF THE DIPLOMATIC
CONFERENCE OF GENEVA OF 1949, at 270 (1963)).
24. See COMMENTARY: III, supra note 23, at 77–78 (“[D]ecisions which might have the
greatest consequences should not be left to a single person, who might often be of subordinate
rank.”).
25. See GC IV, supra note 19, arts. 27, 43 & 78.
26. U.S. DEP’T OF ARMY, REG. 190-8, ENEMY PRISONERS OF WAR, RETAINED PERSONNEL,
CIVILIAN INTERNEES AND OTHER DETAINEES paras. 1-6.a, 1-6.c (Oct. 1, 1997).
27. Id. paras. 1-6.b, 1-6.e(10)(c).
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[Vol. 51:549 own behalf, but cannot be compelled to testify.28 The proceedings are to
be open as a default matter, but can be closed — including removal of
the detainee — as needed to protect classified information.29 The
detainee has no right to counsel or discovery.30 Decisions are taken by
majority vote, subject to the preponderance-of-the-evidence standard.31
AR 190-8’s treatment of security internment decisions is even less
demanding, specifying merely that the initial internment decision must
be made by “a responsible commissioned officer . . . specifically
delegated such authority by the theater commander” (or, alternatively,
by a commander executing a judicial order of internment entered by a
military court sitting in connection with an occupation), with appeals
“decided with the least possible delay by a board of officers,” and with
further review by that board every six months “if possible.”32
Even with these emendations, the 1949 Geneva Convention detention
regimes provide little purchase for raising legal objections to the manner
in which a state operationalizes those regimes. But the procedural
minimalism of these regimes also matters in a distinct sense. By leaving
the rules of evidence, burdens of proof, and related procedural
safeguards associated with POW and security internee decisions to the
discretion of the detaining power, these regimes place little pressure on
militaries to engage in law enforcement-style methods of collecting and
preserving evidence. These detention regimes do not tend to divert the
attention of units in the field from their natural inclination to focus on
force protection and mission-accomplishment concerns, nor do they
incentivize commanders to adopt training procedures, doctrine, or
institutional innovations designed to increase the chances of making
captures “stick” over the long term.
D.
Law, Prevailing Strategic Assumptions, and Practice in the
Field
Procedural minimalism coupled with clear, broad detention authority
is precisely what one should expect in the context of conventional
combat operations, where there is relatively little reason to be concerned
about “false positives.”33 So long as policymakers operated under the
28. Id. paras. 1-6.e(6)–(8).
29. Id. para. 1-6.e(3).
30. See id. para. 1-6 (setting out protections available to detainees in a U.S. Army GC III
Article 5 tribunal which do not include rights to counsel or discovery).
31. Id. para. 1-6.e(9).
32. Id. para. 5-1.
33. For a discussion of the assumptions undergirding the legal frameworks of detention in the
conventional armed conflict scenario — including the relevance of uniforms and citizenship, and
the relatively small risk of “false positive” detentions — see Chesney & Goldsmith, supra note 6,
at 1099–100. The point here is not that innocent civilians do not end up in custody as an initial
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IRAQ AND THE MILITARY DETENTION DEBATE
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assumption that these legal frameworks would remain available
throughout most of the U.S. deployment, one should not be surprised to
learn that there was little emphasis on evidence collection or other law
enforcement-style activities either in training or in the field.
That was in fact the prevailing strategic assumption at the outset of
the Iraq War. According to Colonel W. Renn Gade, a JA who
previously served as the senior military advisor to the General Counsel
of the Defense Department, detention operations did not figure
prominently in pre-invasion planning because the assumptions driving
that planning did not include a sustained U.S. ground presence, let alone
an extended occupation and counterinsurgency campaign.34 This
perspective was shared by troops in the field. Captain Joshua Lewis,
who served as a Company Fire Support Officer in the 502d Infantry
during the invasion phase, observes that “our initial mission was to
overthrow the government. Our follow-on mission (one we never
consider[ed] having to perform) was that of an occupation and
rebuilding force.”35
Understandably, evidence collection in relation to particular
detainees was not a priority at that point. Captain Lewis notes that
“[t]here was never a significant amount of training regarding [detention]
prior to deployment,” and in the field there was “very little effort” with
respect to “preserving evidence, etc.”36 Captain Marshall Clay, who
served as a Fire Direction Officer with the 101st Airborne throughout
the first year of the war, echoed this view: “We collected evidence when
we felt it was necessary, but we did not act as an investigative
agency.”37 Captain Clay added that the biggest hurdles associated with
detention were logistics such as “transportation of detainees, and not the
procedure itself.”38
Had subsequent events unfolded as planners hoped and expected —
i.e., had the United States promptly withdrawn from a pacified and
matter in conventional combat settings; this of course does occur. See, e.g., DEP’T OF DEFENSE,
CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO CONGRESS 662–63 (1992), available
at http://tinyurl.com/26yx9dq. The point instead is that the relatively weak procedural safeguards
of the conventional model generally suffice to screen out such persons relatively expeditiously, as
occurred in the Persian Gulf War. See id. (reporting that the U.S. military conducted 1,196 Article
5 tribunals in 1991, determining that 310 individuals deserved POW status while the remaining
886 were “displaced civilians” who should be “treated as refugees”; none of the civilians “was
found to have acted as an unlawful combatant.”).
34. Telephone Interview with W. Renn Gade, Colonel, U.S. Army (Apr. 28, 2010).
35. E-mail from Joshua Lewis, Captain, U.S. Army (Mar. 20, 2010, 12:52 CST) (on file with
the Virginia Journal of International Law Association).
36. Id.
37. Email from Marshall Clay, Captain, U.S. Army (Apr. 6, 2010, 19:22 CST) (on file with
the Virginia Journal of International Law Association).
38. Id.
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[Vol. 51:549 reconstituted Iraq not long after the invasion — there would be little to
distinguish the American experience with detention policy there from
earlier, unremarkable scenarios such as the 1991 Gulf War. But of
course, things turned out quite differently, and therein lies the story.
II.
THE OCCUPATION PHASE (APRIL 2003–JUNE 2004): SEEDS OF
A HYBRID MODEL
On May 1, 2003, President Bush announced the end of major combat
operations, heralding the onset of the occupation phase.39 The legal
framework associated with non-criminal detention remained unchanged
as a formal matter during this period, with both POW detention and
security internment remaining available on the same explicit and
flexible grounds as before.40 Changing strategic circumstances,
however, ensured that legal and practical changes eventually would
follow.
The onset of the insurgency (or, perhaps more accurately, the
insurgencies) ensured that U.S. boots would remain on the ground
longer than originally expected, perhaps even beyond the end-date of
the occupation. In that case, the detention-friendly rules associated with
international armed conflict and the Geneva Conventions would no
longer apply, giving rise for the first time to questions about the
authority to engage in non-criminal detentions. At the same time,
questions of procedural fairness and “false positives” were bound to
become more significant as the nature of the enemy shifted from
relatively easy-to-identify regular armed forces to relatively difficult-toidentify insurgent networks.
These considerations began to find expression during the occupation
phase itself, precipitating some degree of confusion but not necessarily
any practical change. Not surprisingly, detention in this period came to
focus primarily on the still-flexible security internment model.41 At the
39. Address to the Nation on Iraq from the U.S.S. Abraham Lincoln, 1 PUB. PAPERS 410
(May 1, 2003).
40. See Brian J. Bill, Detention Operations in Iraq: A View from the Ground, in 86
INTERNATIONAL LAW STUDIES, THE WAR IN IRAQ: A LEGAL ANALYSIS 411, 414–15 (Raul A.
Pedrozo ed., 2010), available at http://tinyurl.com/2f8m79o.
41. Cf. W. James Annexstad, The Detention and Prosecution of Insurgents and Other NonTraditional Combatants — A Look at the Task Force 134 Process and the Future of Detainee
Operations, 2007 ARMY LAW. 72, 72, 75–76. Annexstad raises the question of the legal status of
the insurgents in terms of the division between lawful and unlawful combatants, opting for the
latter categorization. Id. at 72 (“Although there has been no formal decision by the U.S.
government as to the status of the insurgents, one may conclude, by applying the requirements
above [necessary to qualify as a prisoner of war under Article 4 of the GC III], that the Iraqi
insurgents are unlawful combatants . . . .”). He does not discuss the possibility of categorizing the
insurgents as “protected persons” or persons otherwise subject to the provision of the Fourth
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IRAQ AND THE MILITARY DETENTION DEBATE
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same time, the U.S.-controlled Coalition Provisional Authority (CPA)
took steps in this period to establish an alternative track for
incapacitating insurgents, in the form of a reformed Iraqi criminal
justice system. The continuing availability of the more flexible security
internment option helped to ensure that the potentially more demanding
procedural features of criminal prosecution did not translate into a
greater emphasis on evidence collection in the field, at least not on a
widespread basis.
At the same time, however, the emergence of a prosecution track was
misconstrued by at least some servicemembers, who apparently
believed both that the prospects for long-term detention now depended
on Iraqi criminal prosecution and that the odds of success on that track
were stacked against U.S. interests. Rather than take this as a reason to
devote greater efforts to evidence gathering, those who made this
mistake may have concluded instead that it counseled against taking
risks to capture individuals whenever lethal force remained a lawful
option.
A.
Preserving and Prioritizing the Security Internment Model
Confronted with a mounting wave of insurgency and terrorism during
the occupation, one can imagine the United States deciding to eschew
the GC IV security internment model in favor of the “unlawful
combatant” model associated with Guantánamo and Afghanistan. That
is, it might have asserted the authority to detain enemy fighters for the
duration of hostilities as combatants, albeit ones without POW status.
But it did not take that path.
Early in the occupation, the United States made clear that the GC IV
security internment system would function as the central tool of
detention policy at least in the short term. In June 2003, for example, the
CPA warned that persons engaged in public incitement to violence and
disorder “will be subject to immediate detention by CPA security forces
and held as a security internee under the Fourth Geneva Convention of
1949.”42 And a few weeks later, it promulgated a memorandum
referring specifically to the “ongoing process of security internee
management as provided for by the Fourth Geneva Convention,” saying
nothing of the possibility of non-criminal detention under any other
theory, based in GC IV or otherwise.43
Geneva Convention, though he does later note the use of the “security internment” framework for
non-criminal detention. Id. at 75–76.
42. Coalition Provisional Authority Public Notice Regarding Public Incitement to Violence
and Disorder, June 5, 2003, http://www.iraqcoalition.org/regulations/PN1.pdf.
43. Coalition Provisional Authority Memorandum No. 3: Criminal Procedures, CPA/MEM/18
June 2003/03, § 1(1)(e), available at http://tinyurl.com/2ds34dg. One might expect a state to opt
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 Even while preserving the security internment option, however, the
CPA also sowed the seeds of a second, alternative detention track.
Specifically, it moved to bolster the capacity of the Iraqi criminal justice
system to be used as a tool to incapacitate not just garden-variety
criminals, but also insurgents and terrorists.
B.
Reviving Iraqi Criminal Justice as an Alternative Track
When the CPA created the Central Criminal Court of Iraq (CCCI) in
July 2003, its original charter did not suggest a particular focus on the
problems of insurgency and terrorism.44 This changed less than a year
later, however, when the CPA specified that the “CCCI should
concentrate its resources on cases related to,” among other things,
“terrorism . . . [and] acts intended to destabilize democratic institutions
or processes . . . .”45
Adopting a prosecution track to assist in suppressing insurgency was
not in itself remarkable. The U.S. military, as a historical matter, has
frequently relied on prosecution as a mode of responding to insurgency
in occupation-type settings.46 Insurgents ordinarily have no legal right
to engage in violence, and the state may see benefits in publicly
branding their conduct as criminal. But in past practice, the U.S.
military acted through its own prosecutorial systems, such as military
commissions.47 In this instance, in contrast, it would be acting through
for the unlawful combatant model over the security internment model whenever possible
(assuming the state believes the former category exists in the first place), on the theory that the
two may be comparable in terms of the detention options they provide but not with respect to the
targeting options they may implicate. On this theory, the unlawful combatant model entails a
judgment that a person is a combatant and hence targetable at any time before becoming hors
d’combat, whereas the security internment model implies a judgment that a person is a civilian
who may be targeted only while directly participating in hostilities. In Iraq, the U.S. military
managed to conduct combat operations — presumably including targeting in circumstances that
might not satisfy some definitions of direct participation — for a considerable period while
simultaneously employing the security internment model for detention. This suggests that the
tension between the interests of targeting and detention are not great in practice, either because of
a broad understanding of the meaning of direct participation or because the GC IV security
internment regime might be read to encompass both civilians (protected by the direct participation
rule) and unlawful combatants (not so protected). Or it may simply be that this issue has evaded
close examination.
44. Coalition Provisional Authority Order No. 13 (Revised): The Central Criminal Court of
Iraq, CPA/ORD/11 July 2003/13, available at http://www.aina.org/books/cpapenalcode.htm.
45. Coalition Provisional Authority Order No. 13 (Revised) (Amended): The Central Criminal
Court of Iraq, CPA/ORD/X 2004/13, § 18(2) (Apr. 22, 2004), http://tinyurl.com/272rwzn.
46. See, e.g., David Glazier, Precedents Lost: The Neglected History of the Military
Commission, 46 VA. J. INT’L L. 5, 48–54 (2005) (discussing extensive reliance on military
commissions to suppress insurrection in the Philippines).
47. See Annexstad, supra note 41, at 73; Michael J. Frank, Trying Times: The Prosecution of
Terrorists in the Central Criminal Court of Iraq, 18 FLA. J. INT’L L. 1, 4 n.8 (2006) (citing ELI E.
NOBLEMAN, MILITARY GOVERNMENT COURTS IN GERMANY 14 (1950)). Frank asserts that “the
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IRAQ AND THE MILITARY DETENTION DEBATE
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the Iraqi criminal justice system even where the defendant was charged
with attacking U.S. forces.48
From a strategic perspective, this approach had the virtue of lowering
the U.S. profile in favor of that of the host government — a useful move
from a counterinsurgency perspective, even if the United States at that
time continued to resist public acknowledgment of the insurgency.
Given that the formal end of the occupation was drawing near by the
time the CPA reoriented the CCCI toward security concerns, this
approach may also have reflected a judgment that a U.S.-controlled
prosecution system simply could not be maintained going forward, in
light of likely Iraqi objections. But acting through the Iraqi criminal
justice system did introduce certain complications, both real and
perceived, beyond those that would arise even in a U.S.-controlled
prosecutorial system.
The Iraqi criminal justice process differs considerably from the U.S.
model, complicating the task of assessing its utility for
counterinsurgency and counterterrorism. A thumbnail sketch is in order.
The Iraqi system is inquisitorial rather than accusatorial. As a result,
the key figure in terms of developing the case against a defendant is not
the prosecutor or a grand jury, but rather the investigative judge (IJ).49
The IJ’s fundamental task is to develop the evidence en route to
determining whether to refer a matter for trial. But the IJ’s investigation
is more significant than this suggests. In many instances, it appears that
the trial chamber relied heavily or even exclusively on the evidentiary
record the IJ prepared, albeit supplemented by statements from the
accused and arguments from the lawyers.50 The utility of the CCCI
process as a counterinsurgency or counterterrorism mechanism thus
depended primarily on the capacity and reliability of the IJ’s
investigative process.
occupying forces of the United States have protected their security and maintained law and order
in the areas under the[ir] control by means of military courts” in connection with “13 major
occupations” spanning the “130 years” up to and including the post-war occupation of portions of
what became West Germany. Id.
48. See Annexstad, supra note 41, at 72–73; see also CTR. FOR LAW & MILITARY
OPERATIONS, U.S. ARMY, FORGED IN THE FIRE: LEGAL LESSONS LEARNED DURING MILITARY
OPERATIONS 134 (2006), http://permanent.access.gpo.gov/lps124476/forged-in-the-fire-2008.pdf
[hereinafter FORGED IN THE FIRE] (explaining that the CCCI represents an effort to “leverage the
domestic criminal justice system to target insurgent activity as well as public corruption”).
49. Annexstad, supra note 41, at 73.
50. Id. at 75; see also Asymmetric Warfare Group, After Action Report, Operation Iraqi
Freedom, November 2008–April 2009: “Front Loading” of U.S. Support to Iraqi Prosecutions
(Apr. 17, 2009), in CTR. FOR LAW & MILITARY OPERATIONS, U.S. ARMY, TIP OF THE SPEAR 57
(2009) [hereinafter TIP OF THE SPEAR] (on file with the Virginia Journal of International Law
Association) (noting that a statement given to an IJ to obtain a warrant may also be used at trial);
Frank, supra note 47, at 33 (noting that “the CCCI trial judges may partially or completely rely on
the investigative judge’s report”).
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[Vol. 51:549 At this stage, the CCCI had little independent investigative capacity.
“In a real sense,” observed a JA who served as an advisor to the CCCI,
“the strength of a criminal case beg[an] and end[ed] with [coalition
forces].”51 As a result, the CCCI’s utility in actual practice turned in
significant part on the evidence-gathering capabilities of U.S. forces —
or, more specifically, the capability and willingness of U.S. forces to
gather the particular types of evidence that Iraqi IJs favored.
Three categories of evidence were particularly important in order to
get an IJ to refer a case to trial.52 First, two witnesses were required, and
though they did not have to be eyewitnesses — secondhand accounts
were acceptable, even if provided by U.S. soldiers — the witnesses did
have to be able to testify either in person or by video.53 Second, there
had to be photographs of the physical evidence — though not the
physical evidence itself, which often was destroyed at the point of
capture if it constituted an armament or other dangerous item.54 And
third, the IJs wanted diagrams depicting where the events took place,
including the location(s) at the scene where evidence had been found.55
Absent these materials, the JAs in the Liaison Office — the U.S.
military officials most directly involved in supporting the CCCI’s
work — generally would not pursue the prosecution.56
The “trials” themselves were “very brief” proceedings involving little
more than a review by a panel of judges of the evidentiary file
assembled by the IJ, typically lasting “around fifteen minutes.”57
Defendants in the CCCI system at this time, moreover, received little in
the way of legal representation.58 As late as December 2006, the New
York Times reported that one American lawyer claimed that “not one
defense lawyer had introduced evidence or witnesses” in any of the 100
CCCI prosecutions in which he or she was involved.59
Considering these features — receptivity to hearsay, lack of adequate
counsel, and the brevity of the proceeding — one might get the
impression that CCCI prosecution was a reliable means to secure the
incarceration of suspected insurgents and terrorists, almost comparable
in its procedural minimalism to the nearly discretionary regime of
51. Annexstad, supra note 41, at 75.
52. Id. at 77–78.
53. Id. at 77.
54. Id.
55. Id. at 77–78.
56. See id. at 77.
57. Id. at 78–79.
58. See Frank, supra note 47, at 39 (claiming that “most defense attorneys do next to nothing
for their clients at the investigative stage” in CCCI proceedings).
59. Michael Moss, Iraq’s Legal System Staggers Beneath the Weight of War, N.Y. TIMES,
Dec. 17, 2006, at A1.
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IRAQ AND THE MILITARY DETENTION DEBATE
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security internment. However, other features of the CCCI process, for
good or ill, did significantly constrain it.60
Perhaps most significantly, the Iraqi criminal justice system has a
relatively strict approach to the admissibility of confessions. “[U]nless
the confession is made either to an Iraqi judge or Iraqi judicial officer it
will be given no weight as proof of the commission of a crime.”61 As a
consequence, most if not all statements made by detainees during
interrogation by coalition forces — whether at the point of capture or
while at a detention facility — proved useless for prosecution
purposes.62 This alone created a substantial gap between the reach of the
security internment and CCCI systems.
In addition, Iraqi judges were averse to prosecutions where some
alleged participants in a particular crime were not available as codefendants — both out of a concern for judicial economy and for fear of
the “empty-chair” defense.63 This problem arose both where the other
persons remained at large and where the U.S. military held them in
custody as security internees, unwilling for whatever reason to
prosecute them at the CCCI along with the other defendant.
Further complicating matters, a JA involved in support to CCCI
prosecutions in 2004 concluded that some CCCI judges were biased
against the United States and its allies, and that this was reflected in a
tendency to impose unduly lenient sentences in cases involving attacks
on coalition forces,64 to inadequately cross-examine defendants and
defense witnesses,65 and to cross-examine U.S. servicemembers all-toovigorously.66 Even without the potential influence of bias, this JA
observed, the CCCI system also entailed various quirks: the lack of a
plea bargain option,67 the inability to reopen the evidentiary record once
an IJ made his recommendation and referral to the trial judges,68 and a
hostility to conspiracy as a theory of liability.69
A final consideration that may have limited the utility of the CCCI
track involves the perpetual tension between the legitimate interests of
intelligence officers tasked with developing and preserving sources of
60. See Frank, supra note 47, at 58 (“With such systematic indolence, it is hard to imagine the
prosecution ever losing a case, but this regularly happens.”).
61. Annexstad, supra note 41, at 78.
62. Id.
63. Id.
64. See Frank, supra note 47, at 8 & n.22 (observing that “the greater problem with the CCCI
is its meager sentences”); see also id. at 115 & n.470 (offering anecdotal support).
65. Id. at 104–08.
66. Id. at 108–09.
67. Id. at 98–101.
68. Id. at 101–04.
69. Id. at 120–24; see also id. at 123 (asserting that “the CCCI judges never charged a single
defendant with conspiracy”).
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 intelligence in furtherance of a unit’s mission and the interests of those
such as the CCCI Liaison Office (CCCI-LO) attorneys, who were
tasked with marshaling evidence in support of prosecutions. Intelligence
officers who controlled such information may have been willing to
allow its use in the U.S.-controlled security internment process, in
which the presentation of the information not only would have been ex
parte, but also would have exposed the information only to U.S.
military officers. But using the same information in the CCCI, where
the judges were Iraqis, was an entirely different matter. Absent
significant pressure from commanders to prioritize prosecutorial
success — something unlikely to have occurred where the security
internment model remained available and where the strategic benefits of
acting through Iraqi institutions had not yet been fully embraced — one
should not have expected to see intelligence officers going to great
lengths to facilitate the use of sensitive information in such a setting.
C.
Practice in the Field: Continuity, Not Change
Whatever the merits of these criticisms and observations, the
emergence of the CCCI option did not precipitate changes in the actual
practices of soldiers and marines in the field, nor in the doctrine and
training underlying those practices.70
To be sure, evidentiary concerns were a priority in the limited
circumstance involving the capture of specific high-value targets.71 In
garden-variety circumstances, however, matters remained otherwise.72
First Lieutenant Eddie Johnson, who served as a platoon leader in
Baghdad in 2004, recalls that:
[My unit] had an established standard for how to handle
detainees (i.e., separating them from each other, standard
questions, blindfolding, etc.). In terms of physical evidence, we
were much less organized. We would attempt to gather evidence
in plastic bags and take many digital photographs and videos.
However, this evidence was rarely ever passed on for any other
purpose than for general record-keeping at the unit level.73
Lieutenant Johnson adds that standard operating procedure relating to
collecting evidence or information in the field then “wasn’t nearly as
robust as it is for units now. We simply would attempt to positively
identify the individual to be detained (usually through an ID card or
70. Annexstad, supra note 41, at 79, 80.
71. E-mail from Eddie Johnson, First Lieutenant, U.S. Army (Mar. 23, 2010, 12:49 CST) (on
file with the Virginia Journal of International Law Association).
72. Id.
73. Id. (emphasis added).
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IRAQ AND THE MILITARY DETENTION DEBATE
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through conversation with the interpreter and family members).”74 An
anonymous Army Captain who served in Baghdad in 2004 concurred,
explaining that his unit “did little to nothing as far as crime scene
preservation o[f] evidence” aside from generating “sworn statements
from Soldiers that were at the scene when the incident occurred.”75
This is not surprising. Whatever incentives the CCCI system might
have generated had it been the only available mechanism for
incapacitating suspected insurgents and terrorists in Iraq at this time —
and it is not clear that the CCCI in its early stages would have done
much by way of creating such incentives — the fact remained that the
U.S. military at this time still had the option of falling back on the
permissive security internment model. The aforementioned anonymous
Captain notes that “all that was needed” at that time to effectively
ensconce a detainee in the security internment system were “sworn
statements from USF [U.S. forces].”76 Captain Lewis affirms the
sentiment, observing that in his experience, soldiers in the field “didn’t
find the procedures all that bothersome; however, that is probably a
function of the fact that very few procedures were in place.”77
On the other side of the balance, servicemembers in the field did have
a strong incentive not to linger at objectives longer than necessary, as
might have been required by greater efforts to gather evidence. Every
minute of delay came at a cost insofar as it increased the chance that the
unit would have been attacked at that location or ambushed upon
withdrawal.78 Reflecting such concerns, Captain Lewis notes that “an
‘effort’ was made to preserve evidence and information, but our main
effort was to stay alive and get home.”79 In the same spirit, Lieutenant
Johnson recalled that “[t]here were numerous occasions where we felt
very exposed and at risk during an operation. This was due to the fact
that proper evidence collection was very time-intensive. There were
times where I pulled my platoon off an objective, in lieu of evidence
collection, in order to protect it.”80
Absent a clear mandate from commanders to prioritize the collection
and preservation of evidence for purposes of facilitating criminal
prosecution, it would be unrealistic to expect a different approach from
units in the field. No such directives were forthcoming during the
occupation phase, however, nor were training and doctrine being
74. Id.
75. E-mail from Anonymous I, Captain, U.S. Army (on file with the Virginia Journal of
International Law Association).
76. Id.
77. E-mail from Joshua Lewis, supra note 35.
78. Annexstad, supra note 41, at 80.
79. E-mail from Joshua Lewis, supra note 35.
80. E-mail from Eddie Johnson, supra note 71.
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[Vol. 51:549 tweaked to reflect such an emphasis. As one CCCI-LO attorney
explained, soldiers and marines at this stage still “receive[d] very little
training, if any, about what evidence is necessary to prosecute
individuals they detain,” and simply did not perceive support for the
criminal process to be part of their “primary mission” in any event.81
D.
Misperceptions in the Field?
The emergence of the CCCI did not precipitate enhanced efforts to
collect evidence in the field. But might this second track have generated
misperceptions that incentivized other behaviors?
One of the most important yet understudied phenomena relating to
the nature of law involves the situation in which the law does not
actually impose some particular restraint, yet relevant actors believe that
it does.82 While such misjudgments are innocuous in many instances,
they are not always so.
In that regard, consider the potential consequences had
servicemembers during the occupation phase come to believe that the
failure to secure a conviction would result in the mandatory release of a
detainee. This would not have been accurate; the inability to prosecute
in the CCCI — indeed, even prosecutions that resulted in acquittals —
had no bearing on the availability of security internment.83 If
servicemembers came to believe otherwise, however, various results
might have followed. In keeping with the observations offered above,
such a perception might have incentivized greater efforts in the field to
secure admissible evidence in order to decrease the risk of acquittal.
Such a belief, however, also might have demoralized servicemembers. It
might have encouraged the use of lethal force in circumstances in which
capture would have been possible though legally optional — to the
immense detriment of the individual, and also at cost to the military, in
terms of lost opportunities to gather intelligence. In the worst case, this
might have undermined the core humanitarian norm against the denial
of quarter.
Disturbingly, there is reason to believe that at least some
servicemembers held such a misconception during the occupation
81. Annexstad, supra note 41, at 80.
82. Consider, in this regard, the pre-9/11 confusion regarding the “wall” between intelligence
and prosecutorial investigations in the United States. See NAT’L COMM’N ON TERRORIST
ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 271 (2004).
83. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report, Operation
Iraqi Freedom, November 2007–February 2009: Educating JAs and Soldiers on the Detention
Standard (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50, at 26 (indicating that “U.S. forces
sometimes detained Iraqis acquitted by the Central Criminal Court of Iraq . . . and returned them
to the [Theater Internment Facility]”).
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IRAQ AND THE MILITARY DETENTION DEBATE
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phase, and that this may have incentivized some units to use lethal force
in circumstances where capture was possible, even if legally optional.
According to Michael Frank, who served as a JA in 2004 in a capacity
relating to supporting prosecutions at the CCCI, a supposed pattern of
“acquittals and paltry sentences [at the CCCI] . . . frustrate[d] the
soldiers . . . undermin[ing] the morale of the soldier-witnesses and their
comrades.”84 This frustration, according to Frank, may have had
dramatic consequences:
[S]oldiers who learned of the CCCI’s shady practices quickly
brought word back to their units that Americans were unlikely to
receive justice at the CCCI. This denial of justice may have
resulted in orders to kill these insurgents — which are lawful
orders — or the adoption of informal practices, to ensure that
terrorists who demonstrate hostile intent are killed, rather than
captured and taken before the CCCI. Adoption of these practices
may be seen as necessary to achieve victory and protect fellow
soldiers . . . . Indeed, several soldiers and Marines informed
American prosecutors that they had no choice but [to] tell their
troops to kill insurgents in light of the verdicts and light
sentences handed down by the CCCI.85
Frank cautions that he does not mean to suggest that concern over the
CCCI’s efficacy resulted in actual denial of quarter in the field, which
would be unlawful, but rather that in “close cases” in which lethal force
was lawful but a capture might nonetheless have been possible, the
individual might have been “killed because American forces d[id] not
want to take the risk that he w[ould] escape justice in the CCCI.”86
As noted above, failure at the CCCI need not have resulted in a
detainee release when, as was the case until 2009, security internment
without charge remained a lawful option. Nonetheless, the very fact that
some, if not many, JAs and soldiers perceived the matter otherwise is
more significant than any theoretical notion of how they ought to have
understood the situation. Such episodes highlight the importance of
ensuring that both JAs and commanders stay well-informed of the legal
environment framing detention practices and that they actively dispel
misconceptions about the law that otherwise might take hold. These
84. Frank, supra note 47, at 83; see also id. at 8–9 & n.22 (claiming that “many cases are not
brought to the CCCI because American prosecutors could not prevail in that forum, and the
suspects are therefore released”) (citing Gregg Zoroya & Rick Jervis, When Shooting Stops,
Troops Turn Detective, USA TODAY, Aug. 10, 2005, at 1); cf. E-mail from Eddie Johnson, supra
note 71 (observing that “morale suffered due to the fact that many detainees would be released
after our efforts to detain them and gather evidence”).
85. Frank, supra note 47, at 83–84 (emphasis added).
86. Id. at 84–85 & n.349.
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[Vol. 51:549 episodes also constitute a useful reminder of the subtle relationship
between detention and the use of lethal force, not to mention a
cautionary tale regarding the manner in which that relationship can
transmit incentives when detention options are restricted in a combat
setting.
III.
THE MANDATE PHASE (JULY 2004–DECEMBER 2008): THE
IMPACT OF CHANGING STRATEGIC PERCEPTIONS
The post-occupation phase in Iraq — or the “mandate phase” — was
a period of both continuity and change in relation to the law, policy, and
practice of detention. It was a period of continuity in the sense that the
security internment system remained in place despite the end of the
occupation and the resulting collapse of the original legal justification
for that system. And, for the first three years, the mandate phase also
was a period of continuity in terms of practice in the field relating to the
collection of evidence and other prosecution-related interests. This
began to change in 2007, however, in response to changing perceptions
of the strategic environment.
Adopting a counterinsurgency paradigm led the U.S. military to
prioritize efforts to bolster Iraqi institutions87 and the rule of law.88 As a
result, the comparative value of the prosecutorial and security
internment tracks shifted. For the first time, servicemembers began to
emphasize evidence preservation and other efforts to support
prosecutions, and the United States simultaneously adopted enhanced
procedural safeguards for the security internment process. Strategic
change — not some change in the law applicable to detention operations
in Iraq — produced these developments.
A.
Preserving the Security Internment Track
By the late spring of 2004, it was clear that the occupation phase
would soon come to an end, at which point the legal predicate for
military detention without criminal charge would become considerably
less clear. Security internment had been justified by the applicability of
GC IV, but with the expiration of both the international armed conflict
and occupation phases, that argument would no longer be available.
Going forward, the conflict in Iraq was most defensibly characterized as
a non-international armed conflict governed by Common Article 3 of
87. See, e.g., Lt. Gen. David H. Petraeus, Learning Counterinsurgency: Observations from
Soldiering in Iraq, MIL. REV., Jan.–Feb. 2008, at 2.
88. See, e.g., THOMAS DEMPSEY, PEACEKEEPING & STABILITY OPERATIONS INST., U.S.
ARMY, RULE OF LAW ACTIVITIES: LESSONS LEARNED (2009), available at http://tinyurl.com/2anvlez.
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IRAQ AND THE MILITARY DETENTION DEBATE
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the 1949 Geneva Conventions, which certainly anticipated that persons
would be detained during such conflicts, but which did not affirmatively
authorize such detentions.
The United States might have responded by adopting the “unlawful
enemy combatant” model of detention without criminal charge,
extending the controversial model associated with Guantánamo and
Afghanistan at that time — and potentially inviting similar criticisms.
But, ultimately, it was not necessary to make such arguments in Iraq, as
an unusual and little-noticed combination of bilateral negotiations
between the United States and Iraq and multilateral positive lawmaking
by the UN Security Council stepped in to provide what might best be
described as a pragmatic, ad hoc expansion of the security internment
regime contained in the Fourth Geneva Convention.
On June 8, 2004, just three weeks prior to the restoration of formal
Iraqi sovereignty, the UN Security Council employed its Chapter VII
enforcement powers to pass UN Security Council Resolution (UNSCR)
1546.89 UNSCR 1546 did not directly confer special detention
authorities on coalition forces; it merely provided that “the
multinational force shall have the authority to take all necessary
measures to contribute to the maintenance of security and stability in
Iraq in accordance with the letters annexed to this resolution expressing,
inter alia, the Iraqi request for the continued presence of the
multinational force and setting out its tasks.”90 One of those letters,
authored by U.S. Secretary of State Colin Powell, referenced the
existence of “forces seeking to influence Iraq’s political future through
violence,” and specified that the Mutti-National Force–Iraq (MNF–I)
“stands ready to continue to undertake a broad range of tasks . . .
includ[ing] combat operations against members of these groups” and
“internment where this is necessary for imperative reasons of
security . . . .”91 The other, authored by interim Iraqi Prime Minister
Alawi, requested the Security Council to issue a resolution conferring a
mandate on the MNF–I to carry out the “tasks and arrangements”
specified in Secretary Powell’s letter.92
Soon thereafter, the CPA revised its standing memorandum on
detention issues — CPA Memorandum No. 3 — to reaffirm the security
internment framework and refine the procedures to be employed in that
89. S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004).
90. Id. ¶ 10.
91. Id. Annex at 8, 11 (“Text of letters from the Prime Minister of the Interim Government of
Iraq Dr. Ayad Allawi and United States Secretary of State Colin L. Powell to the President of the
Council 5 June 2004”).
92. Id. Annex at 8.
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[Vol. 51:549 context.93 Under the revised memorandum, a person held as an
imperative threat to security would “be entitled to have a review of the
decision to intern him” only “if he is held for a period longer than 72
hours,” and, in cases of internment beyond 72 hours, the review must
occur “with the least possible delay and in any case no later than 7 days
after the date of induction into an internment facility.”94
More significantly, the revised memorandum appeared, at first blush,
to introduce an obligation to terminate military custody without criminal
charge after the expiration of a fixed period of time. A person interned
on security grounds after the handover of sovereignty on June 30, 2004,
the memorandum indicated, “must be either released from internment or
transferred to the Iraqi criminal jurisdiction not later than 18 months
from the date of induction into an [Multi-National Force] internment
facility,” and persons under eighteen “shall in all cases be released not
later than 12 months after the initial date of internment.”95
Had the memorandum stopped at that point, it would have marked a
limited, yet significant, reduction in the discretion of U.S. forces to
detain without criminal charge. But the memorandum immediately
qualified this obligation to cease detention beyond a certain date at least
as to adults, explaining that such persons could continue to be held in
security internment beyond the 18-month limit upon application to a
joint committee of U.S. and Iraqi officials, the co-chairs of which “must
jointly agree” to the continued internment and who must “specify the
additional period of internment.”96 The memorandum did not limit the
length of any such additional period of internment, nor did it preclude
successive extensions.
With that qualification, this unusual combination of bilateral
diplomacy and Security Council involvement provided an express
positive-law foundation for carrying the security internment regime
forward, lock-stock-and-barrel, into post-Occupation Iraq.97 This
93. Coalition Provisional Authority Memorandum No. 3 (Revised): Criminal Procedures,
CPA/MEM/27 June 2004/03, http://tinyurl.com/2fsmo8c [hereinafter CPA Memorandum No. 3].
Though the CPA was nearly at the end of its run at this point, all of its memoranda purported to
be entrenched in Iraqi domestic law beyond the life of the CPA, unless and until nullified or
revised by subsequent Iraq lawmakers. See Coalition Provisional Authority Regulation No. 1,
CPA/REG/16 May 2003/01 § 3(1), http://tinyurl.com/2c5pq72.
94. CPA Memorandum No. 3, supra note 93, §§ 6(1)–(2).
95. Id. § 6(5). On the June 30, 2004, power transfer, see Steven R. Weisman, The Struggle for
Iraq: Transfer of Power; Factions Jostle for Top Posts in a New Iraq, N.Y. TIMES, May 24, 2004,
at A1.
96. CPA Memorandum No. 3, supra note 93, § 6(6).
97. U.S. personnel viewed the GC IV system as “the closest legal analogy” to the UNSCRmandated system. See Bill, supra note 40, at 416. DoD Directive 2310.01E (“The Department of
Defense Detainee Program”) did little to clarify matters, other than to specify that “[d]etainees
under DoD control who do not enjoy prisoner of war protections under the law of war ‘shall have
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IRAQ AND THE MILITARY DETENTION DEBATE
577
enabled the U.S. military to continue to engage in long-term detentions
with no criminal charges on a massive scale without precipitating
substantial legal controversy, certainly nothing like that associated with
Guantánamo — not even in the aftermath of the Abu Ghraib scandal,
which generated massive criticism in relation to conditions of
confinement but very little in the way of concern regarding the baseline
authority to detain. And, though UNSCR 1546 expired upon the
formation of a permanent Iraqi government, the Security Council thrice
extended the security internment mandate (in UNSCRs 1637, 1723, and
1790).98
The detention-friendly legal framework that had been in place since
the invasion phase thus remained applicable through the end of 2008.
As a consequence, one might have expected little to change in terms of
institutional structure or practice in the field. Considerable changes did
occur, however, especially from 2007 onward. This was a story of
evolving strategic circumstances and resulting institutional adaptation,
followed — rather than precipitated by — changes in the law.
B.
The Two-Track System in the Early Mandate Phase (July
2004–August 2007)
Throughout the mandate phase, the U.S. military operationalized the
two-track system by funneling detainees through a multi-layered system
of screening and slotting decisions managed by Task Force 134, under
the auspices of MNF–I. Among other responsibilities, Task Force 134
was responsible for “the provision of due process hearings to the
detainees regarding their continued detention.”99 But that description
does not do justice to the complexity of the process, nor does it account
for the space that the process left open for intelligence-oriented, shortterm detentions.
the basis for their detention reviewed periodically by a competent authority,’ consistent with the
Civilian Convention.” Bill, supra note 40, at 420 (quoting DEP’T OF DEF., DIRECTIVE 2310.01E,
DETAINEE PROGRAM ¶ 4.8 (Sept. 5, 2006)). As a result, “it was Article 78 and associated articles
[of the Fourth Convention] to which coalition forces looked in designing” detention operations
for this new phase — just as had been the case during the occupation. Bill, supra note 40, at 416;
see id. at 420 (noting that “there was little binding authority” during the mandate phase, though
U.S. forces used GC IV Article 78 “by analogy”).
98. S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007); S.C. Res. 1723, U.N. Doc.
S/RES/1723 (Nov. 28, 2006); S.C. Res. 1637, U.N. Doc. S/RES/1637 (Nov. 11, 2005).
99. Bill, supra note 40, at 418.
578
1.
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 Screening at the Point of Capture: The Conduct Versus
Status Debate
Opportunities for screening — defined as the inquiry into whether a
person is eligible for either security internment or prosecution — arise
before an individual is actually in U.S. custody. For those individuals
whom the military specifically targets for killing or capture, for
example, it certainly is possible and important to consider the screening
question before capture even is attempted. Especially today, as I discuss
in the next part, this is done as a matter of course. During the mandate
phase, however, the role of U.S. troops as the primary security force in
Iraq generated endless scenarios in which servicemembers in the field
considered whether to take custody of a person who had not been
targeted in advance. Post-improvised-explosive-device sweeps, cordonand-search operations, and run-of-the-mill patrolling in the midst of the
insurgency created the necessity of on-the-fly detention decisions.
This recurring scenario presented a challenge for JAs and
servicemembers alike. The perpetuation of the security internment
system meant that troops in the field did not have to make judgments
about the likely applicability of Iraqi criminal law to a given situation;
even if no criminal charge would be available, security internment
remained available and hence the ultimate question in every instance
was simply whether the person in question constituted an imperative
threat to security. But just what did that mean?
One AAR described that question as the “biggest challenge for JAs
working in the detention area.”100 Both JAs and soldiers, it seems,
considered the phrase to be “a meaningless term.”101
Did this standard require a reason to believe that a person had
engaged in some specific act? Was it instead enough that the person was
of suspect character or had suspect associations? Or was none of that
relevant so long as the person was a military-age male located in a
building or area during a sweep?102
The JAs with one unit resolved the issue by “train[ing] Soldiers to
think in terms of ‘probable cause,’” reasoning that “probable cause . . .
was an easier standard to articulate” and defining the phrase loosely to
100. Office of the Staff Judge Advocate, 4th Infantry Division, supra note 83, at 26.
101. Id.
102. Similar uncertainty complicated the screening process once detainees were taken from
the point of capture to the capturing unit’s temporary holding facility (or that of the unit’s brigade
or division). See, e.g., Office of the Staff Judge Advocate, 3d Infantry Division (Mechanized),
After Action Report, Operation Iraqi Freedom, March 2007–June 2008: Lack of Understanding
Regarding the Legal Standards for Detention Operations (Sept. 23, 2008), in TIP OF THE SPEAR,
supra note 50, at 24.
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IRAQ AND THE MILITARY DETENTION DEBATE
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mean “some reason to think that a criminal act has been committed.”103
That same unit reported, however, that, in actual practice, soldiers
routinely took custody of persons who were not linked to any particular
act but, instead, simply had been identified as “bad” by a neighbor or
had been part of a large group of individuals detained in a general
sweep of an area.104 This more discretionary approach, it seems,
stemmed at least in part from a belief that casting a broad net when
capturing individuals was good for intelligence gathering. Indeed, when
there was a push to move from status-based detentions to conduct-based
detentions in late 2008, the effort met resistance because “there was a
great deal of momentum in terms of the old intelligence-driven
process.”105
2.
Detention for Purposes of Short-Term Interrogation?
Detention of the enemy in the context of armed conflict, as the
Supreme Court observed in Hamdi v. Rumsfeld,106 serves the purpose of
preventing a person from returning to the fight.107 And, the Court added,
a person not otherwise eligible for detention cannot be detained merely
because he or she might prove a useful source of intelligence.108 The
Court did not have the occasion to say whether the same pair of
principles more or less applied by extension in the context of a security
internment system, though one suspects it might well have. But even if
we assume that this is so — and even if we assume too that these
principles apply by further extension to the ad hoc variant of security
internment operating during the mandate phase — a small but
significant window for such “intelligence-gathering” detention is likely
to remain, notwithstanding the existence of a detention-eligibility
screening process.
Consider first the situation in which a capture occurs on an
unplanned, rather than a targeted, basis. As noted above, the capturing
unit’s effectiveness as a first-instance screening mechanism depends
very much on how that unit understands the detention standard itself. If
the unit adheres to an unduly broad understanding, of course, any
resulting inappropriate detentions can be controlled on an after-the-fact
basis by post-capture screening mechanisms. But such mechanisms do
not come into play instantly. In the interim, the detainees are in custody
and subject to interrogation (and so too are their personal effects subject
103.
104.
105.
106.
107.
108.
Office of the Staff Judge Advocate, 4th Infantry Division, supra note 83, at 26.
Id.
Id.
542 U.S. 507, 518 (2004).
Id. at 518.
See id. at 520.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 to exploitation), regardless of what the substantive bounds of detention
authority may be. Consider the recollection of Captain Eric Dalbom,
who served in Baghdad with the 10th Mountain Division from July
2004 through July 2005 and noted that his brigade and an Iraqi unit had
“randomly detained hundreds of men in Abu Ghraib [the city, not the
notorious prison facility] and then questioned them at a temporary
detention facility in that town.”109
The resulting information might have provided a basis for sustaining
some of these detentions once screening did finally occur, or it might
not have. The important point is that detention during this window of
time was effectively discretionary, and that this facilitated the gathering
of intelligence irrespective of whether the screening process ultimately
required a particular detainee’s release. To a certain extent, this window
cannot and should not be reduced. In light of the fog of war and the
imperatives of short-term tactical intelligence gathering, some amount
of discretion at and immediately after the point of capture seems
inevitable. But the longer the pre-screening period lasts and the broader
the net cast, the less persuasive such justifications become.
In the targeted capture scenario, things look a bit different. That
setting by definition provides at least some opportunity for advance
consideration of whether the target is indeed eligible for detention. And,
by the same token, the targeting scenario at least sometimes should
entail an opportunity for JA involvement. Captain Dalbom reports that
such screening did in fact occur, citing instances when his unit wished
to incapacitate a specific individual, but did not attempt a capture
because advance review indicated that the detention most likely would
not be upheld after the fact.110
Nonetheless, even these features of the targeted capture scenario may
not always be enough to preclude an intelligence-driven detention
decision beyond the scope of the available detention grounds.
According to one unit’s AAR:
JAs who challenge a G2 [intelligence officer] request for
detention must be careful because repeatedly denying such
requests may mean exclusion from the targeting process (e.g., the
unit detains the individual in any case, allowing interrogation
until release is required by the lack of substantiation for
continued detention).111
109. E-mail from Eric Dalbom, Captain, U.S. Army (Mar. 18, 2010, 15:30 CST) (on file with
the Virginia Journal of International Law Association).
110. See id.
111. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Working with G2 Personnel to
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IRAQ AND THE MILITARY DETENTION DEBATE
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These observations highlight the significance of how the detentioneligibility screening process is structured and institutionalized. For good
or ill, the longer the period between capture and post-capture screening,
the greater the opportunity for purely discretionary detentions. Even in
the context of targeted captures, where pre-screening is, in theory,
possible, the extent to which that screening will occur or have teeth will
depend on the extent to which compliance-oriented personnel have an
institutional voice in the process.
3.
Post-Capture Screening and Slotting
Whatever the merits of screening at the targeting and capture stages,
post-capture screening naturally played a particularly important role
during the mandate phase. Moreover, the decision whether to pursue a
prosecution was woven into the post-capture process.
a.
Haphazard Screening at the Temporary Holding Facility
The first opportunity for screening post-capture arose when the
detainee was brought in from the field to a temporary holding facility
(THF). Some units had their own THFs, while others did not and hence
would send their detainees directly to a brigade- or division-level
THF.112
In some instances, screening with real teeth occurred at this point.
The Third Armored Cavalry Regiment, for example, reported that its
“facility noncommissioned officer (NCO) regularly sent units back to
complete sworn statements if those they attempted to turn in failed to
meet the minimum requirements.”113 On one occasion, the facility NCO
“decided to release every single one of the detainees [that a new]
subordinate unit captured” because that new unit had “adopted lessthan-strict detention operation standards.”114
The actual procedures for screening at a THF varied from unit to unit.
Some vested the ultimate decision regarding detention eligibility in a JA
who would act based on information provided in a dossier assembled by
the brigade’s intelligence officer (the S2).115 Another unit employed a
Understand Basis and Evidentiary Requirements for Detention (Apr. 30, 2009), in TIP OF THE
SPEAR, supra note 50, at 28.
112. Bill, supra note 40, at 422.
113. Regimental Judge Advocate, 3d Armored Cavalry Regiment, After Action Report,
Operation Iraqi Freedom, November 2007–January 2009: Detainee Packets (Apr. 22, 2009), in
TIP OF THE SPEAR, supra note 50, at 34.
114. Id.
115. See Brigade Judge Advocate, 4th Brigade Combat Team, 3d Infantry Division, After
Action Report, Operation Iraqi Freedom, October 2007–December 2008: Detention Operations
Process (Mar. 25, 2009), in TIP OF THE SPEAR, supra note 50, at 21.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 process in which the S2 first reviewed a detainee’s file and expressed
his or her views in an email to the JA, the JA “considered both the
detainee’s intelligence value and the level of evidence available” in
making an email recommendation to the regimental executive officer
and the executive officer made a final judgment on that basis.116 Others
went so far as to employ formal detainee review boards chaired by the
unit’s commanding officer,117 a circumstance that, if nothing else,
guaranteed more effort by all parties involved.
But not every unit engaged in screening at the THF stage. Some took
the view that this would merely “duplicat[e] the review” that inevitably
would be conducted when the detainee eventually was sent on to a longterm detention facility.118 For persons captured by those units, the
period of custody without screening lasted for the duration of the shortterm THF custody period. As a general rule during the mandate phase,
that deadline was fourteen days from the point of capture. Beyond that
point, the detainee had to be transferred to a long-term Theater
Internment Facility (TIF), such as Camp Cropper or Camp Bucca.119 As
noted above, substantial screening did occur at the TIFs, including some
degree of review before the TIF would accept custody of an individual.
The existence of the 14-day window for detention at a THF prior to
transfer to a TIF, combined with the fact that some units conducted no
screening at the THF stage, resulted in an opportunity to detain
ineligible persons for intelligence-gathering purposes — a prospect
described in the previous section. And at least some units in the
mandate phase seem to have done just that. Prior to 2009, one AAR
explained, “units often detained individuals for interrogation purposes
until the end of the 14-day period (when guidance required a move to
the TIF).”120
In actual practice, this highly discretionary pre-transfer period may
have been shorter because it took so much time to effectuate the
logistics of the transfer itself.121 For good or ill, however, the fact
remains that the constraints seemingly imposed by the existence of
116. Regimental Judge Advocate, 2d Stryker Cavalry Regiment, After Action Report,
Operation Iraqi Freedom, August 2007–May 2008: Procedures for Review of Detention Packets
(Feb. 17, 2009), in TIP OF THE SPEAR, supra note 50, at 32.
117. Regimental Judge Advocate, 3d Armored Cavalry Regiment, After Action Report,
Operation Iraqi Freedom, November 2007–January 2009: Detention Review Boards (DRBs)
(Apr. 22, 2009), in TIP OF THE SPEAR, supra note 50, at 33.
118. Office of the Staff Judge Advocate, 1st Armored Division, After Action Report,
Operation Iraqi Freedom, September 2007–December 2008: Detention Review Board (Feb. 19,
2009), in TIP OF THE SPEAR, supra note 50, at 34.
119. Bill, supra note 40, at 422.
120. Office of the Staff Judge Advocate, 4th Infantry Division, supra note 111.
121. Regimental Judge Advocate, 2d Stryker Cavalry Regiment, supra note 116, at 32.
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IRAQ AND THE MILITARY DETENTION DEBATE
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substantive detention criteria in actual practice have less or no impact
prior to the moment in time that screening for detention eligibility
actually occurs.
b.
Substantial Screening at the Theater Internment Facility
Whether or not any screening occurred at an earlier stage, transfer of
a detainee to a TIF triggered an institutionalized screening process that
constituted a significant restraint on detention discretion. Indeed, the
bureaucratized process of persuading the TIF to accept transfer of the
detainee was itself a mechanism for constraining discretion:122
The capturing unit personnel . . . [had to] turn in whatever
evidence they [had] to support continued detention. At a
minimum, this [had to] include a completed standard form,
which contain[ed], among other things, identifying information
about the detainee, a short synopsis of the conduct which led to
his capture and identification of relevant witnesses. In addition,
two sworn statements describing the capture or other
circumstances [were] required. In most cases, more information
would [have been] included, such as pictures, charts and other
relevant statements.123
Assuming the requisite documents were provided, the arrival of the
detainee at the TIF triggered a new stage of screening and the first
opportunity to consider use of the prosecution track in lieu of security
internment.
FIGURE 1: DETAINEE APPELLATE PATHWAYS IN THE EARLY MANDATE
PHASE AND LATE MANDATE PHASE
Periodically
Reassessed by:
Magistrate
Cell Review
(MCR)
Combined Review
and Release Board
(CRRB)
After Fall
2007
Until Fall
2007
Multi-National
Force Review
Committee
(MNFRC)
CRRB
122. Upon arrival at the TIF, interrogators conducted screening interviews to get biographic
information and “to generally assess the detainee’s knowledge and cooperation.” The goal was
“not to attempt to prove or disprove the facts underlying the capture” but rather “to assess
whether the detainee knew anything that would be of future tactical or strategic importance.” Bill,
supra note 40, at 419.
123. Id. at 422.
584
i.
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[Vol. 51:549 Magistrate Cell Review
This new stage of screening, which had to occur within the first seven
days of transfer to the TIF, was known as “magistrate cell review”
(MCR). The MCR process was largely ex parte, based on the
documents and other materials contained in a detainee’s case file. The
reviewing officer (who might or might not be a JA) examined this
material with two questions in mind:124 First, was there enough
potentially admissible evidence to justify a CCCI prosecution? And
second, was there enough information to justify use of security
internment?125
Reviewing officers were instructed to be liberal in referrals for
prosecution, bearing in mind that the CCCI’s IJs could decide for
themselves whether to proceed. In actual practice, as a result, the MCR
referral rate for prosecution “was fairly constant at . . . 15 to 20
percent.”126 The rate of cases referred for prosecution was, however,
lower than the rate of MCR approvals for continued security
internment.127
The MCR process employed a “reasonable basis” standard for
security internment eligibility, based solely on the documentary
record.128 The process was largely ex parte, with the detainee having no
involvement of any kind unless the reviewing officer concluded that the
record did suffice to justify the detention. At that point, the detainee was
permitted to offer a written statement in his own defense, though he or
she still would not be privy to the contents of the record.129 On the other
124. See FORGED IN THE FIRE, supra note 48, at 35; Brigade Judge Advocate, 1st Brigade
Combat Team, 101st Airborne Division (Air Assault), After Action Report, Operation Iraqi
Freedom, September 2007–November 2008: Detention Based on Insufficient Evidence (Jan. 15,
2009), in TIP OF THE SPEAR, supra note 50, at 33 (describing arrangement in which the brigade’s
Deputy Commander (DCO) acted as DRA, with advice from the brigade Trial Counsel); Brigade
Judge Advocate, 2d Brigade Combat Team, 101st Airborne Division (Air Assault), After Action
Report, Operation Iraqi Freedom, October 2007–November 2008: Detention Review Boards
(DRB) (Jan. 13, 2009), in TIP OF THE SPEAR, supra note 50, at 33 (describing system in which the
DCO acted as the DRA, with written opinions offered individually by different staff sections
including the JA and S2).
125. Bill, supra note 40, at 425–26; see also FORGED IN THE FIRE, supra note 48, at 35 (citing
COMBINED JOINT TASK FORCE 7, STANDARD OPERATING PROCEDURES FOR JOINT DETENTION
OPERATIONS IN SUPPORT OF OPERATION IRAQI FREEDOM para. 5.r (2004)).
126. Bill, supra note 40, at 425–26.
127. Id. at 426.
128. FORGED IN THE FIRE, supra note 48, at 35 (citing COMBINED JOINT TASK FORCE 7,
STANDARD OPERATING PROCEDURES FOR JOINT DETENTION OPERATIONS IN SUPPORT OF
OPERATION IRAQI FREEDOM para. 5.r (2004)). Bill notes that “the substantive standard used
throughout all legal reviews was always the same: whether the detainee was an imperative threat
to security. This critical standard never received any further elaboration . . . .” Bill, supra note 40,
at 421.
129. Bill, supra note 40, at 426.
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IRAQ AND THE MILITARY DETENTION DEBATE
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hand, if the officer concluded as a preliminary matter that the record did
not suffice to justify the detention, the TIF would invite the capturing
unit to submit more information in support of detention (in some cases
the reviewing officer would simply reach out to that unit for
clarification or additional information before making even a preliminary
determination).130 If, after such efforts, the reviewing officer still
believed the standard was not met, the detainee was released. The
officer’s judgment was final in actual practice; the volume of cases
during the mandate phase was simply too high for “anything more than
random quality assurance checks.”131
The reviewing officer’s task was complicated by the central role
played by inculpatory statements from informants. To protect the
informants, their identities were often kept secret — adding to the
difficulty of assessing their veracity. The declarants did not appear live
at the review, and they usually could not be re-interviewed for
clarification or other reasons due to the poor security situation in the
field. Reviewing officers seem to have appreciated that, at times, such
statements were tainted. There was some degree of self-interested
informing on neighbors,132 for example, and “there was no effective
sanction for bearing false witness” in any event.133
ii.
Combined Review and Release Boards
MCR review was but the first stage of screening at the TIF. A
separate body known as the Combined Review and Release Board
(CRRB) provided two distinct forms of additional review. First,
detainees had an automatic right to further review of an adverse MCR
determination within 90 days, and CRRBs acted as the appellate body
for this purpose. Second, CRRBs also reconsidered internment decisions
every six months, regardless of the outcome of the MCR appeal.134
The CRRB process, like the MCR, was an ex parte proceeding —
excepting the aforementioned opportunity for the detainee to write a
statement. In contrast to the MCR, the CRRB was a multimember body,
and it had both U.S. and Iraqi members. The Iraqi members were the
majority in a typical CRRB session.135
Prior to a CRRB vote, an attorney from Task Force 134’s legal office
would write a summary of the available information, including an
Arabic translation. The CRRB members would then assemble in a
130.
131.
132.
133.
134.
135.
Id. at 425.
Id. at 426.
Id. at 424–25.
Id. at 425.
Id. at 426–27.
Id. at 427.
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[Vol. 51:549 conference room, read the files, and provisionally vote as to whether
there was sufficient evidence to support an imperative security threat
finding. Some discussion would follow, then the final vote. A simple
majority controlled the outcome. Over time, the CRRBs recommended
release in “approximately 12 to 15 percent” of the cases.136
4.
Continuity of Practice and Perceptions in the Field
Notwithstanding the institutionalization of the prosecution track in
the detainee review system, the continued dominance of the security
internment regime in the early mandate phase ensured continuity with
respect to the practices and perceptions of servicemembers at the point
of capture in the field. Brian Bill, who served as legal advisor to Task
Force 134, summarized the prevailing perspective: “[D]etainee
operations are neither premised upon nor necessarily directed toward
successful criminal prosecution. Soldiers are not criminal investigators
and the uncertain security situation rarely permitted any forensic
exploitation of the capture site.”137
To illustrate the point, Bill noted that “detainees would often be
found in possession of dangerous weapons,” yet, rather than preserve
those weapons as evidence of a crime, the soldiers “usually destroyed
[them] in the field in the interest of safety and force protection,” making
do with photographs alone.138
Of course, those photographs could still be quite useful as evidence
in a subsequent CCCI proceeding — assuming, that is, that they actually
depicted the weapons in proximity to a detainee. Anecdotal accounts
suggest that such documentation was still not a high priority in the early
mandate period. Captain Luther Vallete, who served as a Rifle Platoon
Leader in Baghdad and Fallujah from the fall of 2004 through the spring
of 2005, recalls that his unit did engage in “basic evidence gathering,”
in that they “would confiscate contraband and take pictures of the site
and the contraband.”139 But his unit did not take pictures linking
contraband to particular detainees during the early mandate phase, in
contrast to the practice he observed during a subsequent deployment.140
Given the forgiving process associated with MCR and CRRB
screening of security internees, these limitations were not necessarily a
significant problem in terms of being able to sustain a detention.
Strikingly, however, Captain Vallete reports a perception among some
136. Id.
137. Id. at 451 n.87.
138. Id.
139. E-mail from Luther Vallette, Captain, U.S. Army (Apr. 5, 2010, 9:51 CST) (on file with
Virginia Journal of International Law Association).
140. Id.
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IRAQ AND THE MILITARY DETENTION DEBATE
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servicemembers that these mechanisms were cumbersome and difficult
to satisfy. He notes that “there was belief [in his unit] that most
detainees were just released anyway”141 and “a perception that there
was only a small chance that they would stay detained,” based on “the
perception of difficulty of the detainee process.”142 He candidly
observes that this perception was incomplete, explaining that “in hind
sight . . . the poor effort we put into the detainee process” contributed
significantly to the perceived difficulty of keeping captives detained.143
C.
Strategic Change and the Evolution of the Two-Track System
in the Late Mandate Phase (August 2007–December 2008)
By 2007, perceptions of the strategic environment had changed
considerably. The insurgency continued to rage, fueling sectarian strife
that threatened to spill over into an outright civil war. At the same time,
domestic political support for American involvement in Iraq was in
sharp decline, highlighting the prospect that the involvement would
come to an end sooner rather than later. Commanders responded by,
among other things, embracing a counterinsurgency model that
emphasized the strategic priority of capturing the hearts and minds of
the Iraqi population and thereby both stabilizing the Iraqi government
and diminishing support for the insurgency. This, in turn, led to efforts
to enhance the legitimacy and relevance of Iraqi institutions, to build
support for the rule of law in Iraqi society, and to find ways to minimize
the most intrusive and inflammatory aspects of the U.S. military
presence.144
Viewed through that lens, change to detention policy in Iraq was
inevitable even though the formal legal framework undergirding the
two-track system remained unchanged. In short order, commanders had
modified the security internment track by introducing new procedural
safeguards, thereby trading a degree of discretion for enhanced
legitimacy. At the same time, efforts to support the CCCI prosecution
141. Id.
142. Id.
143. Id. Captain Vallette reports an experience that contributed to his perception that the
detainee process was too demanding: “During my first tour my platoon detained two males that
had many illegal weapons, weapon parts, and ‘bomb-making’ equipment. We followed the
current detainee process and turned the detainees over to the BIF. One year later, when I was back
at Ft. Hood, I was told that I needed to attend a [video teleconference] trial for the two men I had
detained. The trial was delayed several times. I found out later that it was delayed due to lack of
proper evidence. The two males were then let go.” Id.
144. See generally THOMAS RICKS, THE GAMBLE: GENERAL DAVID PETRAEUS AND THE
AMERICAN MILITARY ADVENTURE IN IRAQ, 2006–2008 (2009) (examining the counter
insurgency strategy employed by the U.S. military in Iraq under the command of General David
Petraeus).
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 track continued to evolve, and those efforts at last began to benefit from
new perceptions and practices among servicemembers regarding the
importance of evidence collection in the field.
1.
Enhanced Process on the Security Internment Track
The security internment system evolved considerably in the Fall of
2007. Though the ex parte CRRB process would continue to serve as
the direct appeal body for the ex parte MCR process, the CRRB lost its
second role as the body conducting twice-yearly reviews of whether it
remained appropriate to detain particular persons. In its place came the
Multi-National Force Review Committee (MNFRC), which was the first
body to include an opportunity for a live appearance by the detainee.145
Commanders did not take this step out of any sense of legal
obligation.146 Nothing in GC IV’s security internment provisions or the
Security Council’s resolutions required it. The change was, instead, a
policy response to the changing perception of circumstances in Iraq.
Some had begun to perceive the CRRB process as procedurally
deficient, in no small part because it was ex parte.147 U.S. officials
became concerned that such perceptions contributed to instability —
and hence insecurity — within the TIFs and more generally
undermined the hearts-and-minds effort lying at the center of the
counterinsurgency strategy.148
According to a memorandum issued in August 2007 by Major
General Douglas Stone, who was responsible for detention operations in
Iraq at that time, the task of the MNFRC ultimately was to determine
whether “there are reasonable grounds to sustain” a finding that a
particular detainee “remains an imperative threat to security,” with
“reasonable grounds” further (though not particularly helpfully) defined
as “sufficient indicators to lead a reasonable person to believe that
detention is necessary for imperative reasons of security.”149 More
usefully, General Stone wrote that MNFRC members should focus “on
the threat the detainee presents today, not the threat he posed when he
was captured. Pre-capture conduct may be important as an indicator of
the detainee’s threat level now, and in the future, but it is not the sole
145. Detainees also could be released based on an individualized determination approved by
the Deputy Commanding General for Detention Operations. Frequent requests to that effect were
made by Iraqi officials, and also by coalition officials who thought a particular release would
facilitate engagement efforts. See Bill, supra note 40, at 435.
146. See id. at 438.
147. See id. at 428–29.
148. See id.
149. Memorandum from Douglas M. Stone, Major General, U.S. Marine Corp for MultiNational Force Review Comm. Members (Aug. 5, 2007), reprinted in Bill, supra note 40, at 443
(providing instructions for reviewing continued internment of detainees in Iraq).
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IRAQ AND THE MILITARY DETENTION DEBATE
589
indicator.”150 General Stone specifically cautioned that the members are
not bound by prior determinations of such questions.151
The MNFRC process, perhaps not surprisingly, resulted in release
more frequently than the CRRB process had. Just as predictably, this
precipitated some tension with operational units. There had been a
general expectation that MNFRCs would initially produce a burst of
release decisions, as it was widely understood that the MNFRCs would
first address a batch of particularly weak cases. The resulting release
rate of 25% thus did not shock or surprise.152 Remarkably, however, the
release rate actually rose substantially once this initial phase passed,
reaching 40%.153 At that point, some servicemembers became distrustful
of the MNFRC system.154
Possibly as a result of this distrust, MNF–I began sending operational
servicemembers to serve one-week rotations on MNFRCs, joining the
detention operations personnel from Task Force 134 who previously
had shouldered this burden on their own. These one-week rotations
began on Saturdays. Tellingly, the rate of releases on those Saturdays
dropped back to 20%, but then would rise throughout the week until
returning to 40%, at which point the cycle would repeat with the arrival
of new personnel.155 Over time, however, the pattern of initial drop-offs
disappeared, and the release rate held steady at 40% irrespective of the
personnel involved.156 This suggests that the involvement of the
operators in the screening process eventually helped that community
come to terms with the MNFRC’s role.157 Consistent with that
possibility, Bill reports that “[s]enior enlisted members would often say
that they were going to go back to their units [after serving on a
MNFRC] and make sure they did things correctly in the future,” noting
that enlisted personnel could take that position with a credibility that
officers could not match.158
150. Id.
151. Id. By mid-2008, the Theater Internment Facility Reconciliation Center (TIFRC) offered
literacy and job training and religious engagement (“[A] majority of the detainees had joined the
insurgency for money: they had no jobs and were willing to take cash to emplace IEDs, etc.”).
This did not qualify a person for release, but it was an explicit factor for the MNFRC to consider
in making its continuing-threat determination. See Bill, supra note 40, at 434–35.
152. Bill, supra note 40, at 432.
153. Id.
154. See id. at 431–32.
155. Id. at 433.
156. Id.
157. See id. at 433, 441.
158. Id. at 455 n.126. Interestingly, one step the MNFRC system never took involved the use
of counsel, despite pressure to that effect imposed by the International Committee of the Red
Cross (ICRC). According to the TF-134 legal advisor at the time, the ICRC “never hid its
ambition to push the MNFRC process until, step-by-step, legal counsel were assigned to all
detainees at every hearing.” Id. at 434. Task Force 134 did eventually assign personnel to act as
590
2.
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 Continued Support of the CCCI Prosecution Track
If the impetus for change in the security internment system ultimately
traced back to the strategic priorities of the hearts-and-minds model of
counterinsurgency, one might also expect to see simultaneous efforts to
bolster the utility of the prosecution alternative. The CCCI system, after
all, was an Iraqi institution where the ultimate decision lay in the hands
of Iraqi judges, however significant U.S. forces may have been to its
operation in practice. Prosecution by Iraqi courts thus had the benefit of
reducing the visibility of the U.S. footprint in Iraq while, in theory,
bolstering the rule of law in Iraq.
By some measures, it would be hard to demonstrate an enhanced
commitment to the prosecution track. The military already provided a
tremendous amount of support to CCCI prosecutions by this time.
Attorneys in the CCCI-LO went to great lengths to develop case files
before turning them over to Iraqi authorities for further pursuit,
collecting most, if not all, of the relevant evidence. Once the
prosecution process was underway, CCCI-LO attorneys handled the
logistics of witness travel and interviewing, arranged for the appearance
of the defendant as needed, handled judicial requests for more
information, and even suggested questions for the investigating judge to
ask. In effect, the CCCI-LO attorney functioned as a “‘shadow’
prosecutor.”159
That said, the military did move to increase the capacity of the
prosecution track. In cooperation with the Justice Department, it created
a Law and Order Task Force (LAOTF) in early 2007 that aimed, among
other things, to increase the volume of cases the CCCI was capable of
processing, and to improve the conviction rate in those cases.160 The
CCCI conviction rate at that time was 60%.161
Short of abandoning the security internment track, there was not a
great deal more that the military could do in support of the prosecution
alternative. Policymakers in 2007 simply were not prepared to abandon
the security internment track. In the not-infrequent circumstance in
“personal representative” — though not as lawyers — in the small number of cases involving
juveniles, female, third-country, and mentally-infirm detainees, but not more broadly. Id. at 433–
34. Task Force 134 “held several hundred juveniles,” but usually only between 5 and 20 female
detainees. Id. at 434 n.114. TF-134 typically had fewer than 200 third-country nationals in
custody. Id.
159. Id. at 437.
160. Director, Interagency Rule of Law Coordinating Center, After Action Report, Operation
Iraqi Freedom, June 2008–June 2009: Establishment, Initial Purpose, and Subsequent Refocusing
of LAOTF (June 29, 2009), in TIP OF THE SPEAR, supra note 50, at 115.
161. Bill, supra note 40, at 437. Bill also notes a practice of charging all adult males found at
the scene of an arms cache in order to avoid an empty-chair defense, even where it is relatively
clear not everyone present will likely be convicted. Id.
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IRAQ AND THE MILITARY DETENTION DEBATE
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which prosecution failed, the United States reserved the right to shift the
individual back onto the security internment track for continued
detention, notwithstanding a CCCI acquittal or an investigative judge’s
decision not to refer a case for prosecution. “This was a source of
confusion for the detainee and of tension with the Court,” though in the
end “most of the judges understood the separate security-based
detention authority.”162
3.
Changing Perceptions and Practices in the Field
The changing strategic environment did more than just encourage
new procedural safeguards for the security internment system and
increased interest in the prosecution track. It also found expression in
the perceptions and practices of soldiers in the field, including a
newfound appreciation for the utility of gathering and preserving
evidence at the point of capture. That, in turn, made further procedural
changes more plausible, ultimately paving the way for the formal
abandonment of security internment at the end of 2008.
The shift in mood was neither instantaneous nor uniform, but
something was plainly afoot well before the end of the mandate phase.
First Lieutenant Tyler Stegeman, who served in Baghdad as a Tank
Platoon Leader from late 2006 until early 2008, reported his perception
that those his unit captured “were enemy combatants until we disarmed
them,” but that, once captured, they were best understood to be
“criminal defendants.”163 That same view was expressed by another
soldier who had been involved in the capture of high value targets in the
late mandate period.164 That same soldier also noted his understanding
that detention itself “was not a primary mission” at this stage, but rather
“was secondary to securing the populace and winning hearts and
minds.”165 These perspectives were not commonly expressed in earlier
phases, to say the least.
The change was not simply a matter of mental perspective, however;
it also found expression in training and in operational practice. A unit
that deployed in late 2007 reported that it experienced “an aggressive
program before deploying to ensure the Soldiers were prepared to
handle detention operations,” a curriculum that stressed “the importance
of preparing detailed files for those detained.”166 Another unit that
162. Id.
163. E-mail from Tyler Stegeman, First Lieutenant, U.S. Army (Mar. 24, 2010, 11:46 CST)
(on file with Virginia Journal of International Law Association).
164. See E-mail from Anonymous II, Captain, U.S. Army (on file with Virginia Journal of
International Law Association).
165. Id.
166. Brigade Judge Advocate, 3d Brigade Combat Team, 101st Airborne Division (Air
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 deployed near that time indicated that it “received training on detention
operations before the deployment” that included learning “what a good
detainee packet looks like and what should be in it.”167 On the
operational side, by late 2008, some units had developed a practice of
JA review of the detention “packets” not only after a person was
captured but also, whenever possible, beforehand — with an eye toward
the prospects for a criminal prosecution.168 Equally if not more
significant, soldiers responsible for accepting detainees into detention
facilities by this period had become relatively firm in requiring adequate
documentation before they would accept detainee transfers. According
to an Army Captain who wished to remain anonymous, this strictness
had a powerful instructive effect on units in the field:
One of the major shifts resulted [from] the training of Soldiers
who ran the detention facilities. They were responsible for
admitting new detainees and would reject detainees who did not
meet the requirements or if the paperwork did not meet the
requirements. It wouldn’t take long for the boots on the ground
units (usually one misprocessed detainee) to learn how to handle
detainees according to whatever procedure was currently in
place.169
He added that “[u]nits across the board began more formal capture and
documentation procedures when they became mandated by the holding
facilities. Nobody wanted to put their life on the line to capture someone
who would be released because of a technicality.”170 These changes, the
Captain reports, “positively affected units’ ability and willingness to
conduct thorough site exploitation . . . . I witnessed this change; it
occurred in 2008.”171
Other reports concur in this assessment. Captain Vallette, who
returned to Iraq from 2007 to 2008 to serve as a Scout Platoon Leader in
Assault), After Action Report, Operation Iraqi Freedom, September 2007–November 2008: PreDeployment Legal Training for Detention Operations (Jan. 14, 2009), in TIP OF THE SPEAR, supra
note 50, at 25.
167. Brigade Judge Advocate, 2d Brigade Combat Team, 101st Airborne Division (Air
Assault), After Action Report, Operation Iraqi Freedom, October 2007–November 2008: Training
on Detainee Packets (Jan. 13, 2009), in TIP OF THE SPEAR, supra note 50, at 25.
168. One Brigade Judge Advocate, for example, would perform a “pre-detention review of
intelligence and attend targeting meetings, while the [Trial Counsel] conducted a post-detention
review of the sufficiency of the evidence in the packet. They carried some of this practice over to
warrant-based targeting.” Brigade Judge Advocate, 2d Heavy Brigade Combat Team, 1st Infantry
Division, After Action Report, Operation Iraqi Freedom, October 2008–June 2009: Division of
Pre-Security Agreement Detention Operations Duties (on file with the Virginia Journal of
International Law Association).
169. E-mail from Anonymous II, supra note 164.
170. Id.
171. Id.
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IRAQ AND THE MILITARY DETENTION DEBATE
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East Baghdad, recalls that “we had to start taking pictures of the
contraband that also included the detainee,” something his unit had not
done during his 2004–2005 deployment.172 The point, as Captain
Vallette understood it, was to “prevent[] the detainee being released due
to a legal loophole.”173 An anonymous Army Captain who also served a
second deployment during this period offered a similar observation
about the contrast with practice in the field during the early mandate
phase. Unlike the earlier deployment, “[d]uring the second deployment
we treated each scene like a regular crime scene with sworn statements,
evidence collection, biometrics, etc.,” including efforts to obtain sworn
statements from Iraqis rather than just U.S. forces.174 The 4th Infantry
Division’s Staff Judge Advocate adds that, throughout 2007 to 2008, its
JAs “tried to organize an effort to assemble a site exploitation kit for
U.S. Soldiers and encouraged units to teach their Soldiers to obtain
basic elements such as a completed apprehension form, witness
statements, and photos of the detainee with a weapons cache.”175 He
also notes an effort to ensure that units be familiar with what one might
find in a model “detainee packet” and encourage them “to include in
their statements the ‘why’ of the actions they had taken at the point of
capture.”176
All that said, force-protection concerns of course persisted in the
counterinsurgency-oriented environment of the late 2007–2008 period,
and the effort to enhance evidence collection and preservation was in
tension with such concerns. First Lieutenant Tyler Stegeman explains
why the evidence-oriented process required so much time:
During times of large caches being found, along with people in
the house, a majority of the time was left to uncovering hidden
weapons and munitions. For example, many houses had secret
compartments and false walls, which we had to uncover with
axes and sledge hammers. This was very time consuming. After
finding all of these items, we would take photos of those
captured with the munitions. Additionally, we would collect
fingerprints, scan retinas, and collect statements from neighbors
and local residents. In the end, we were able to wrap up a crime
scene in a little over an hour.177
172. E-mail from Luther Vallette, supra note 139.
173. Id.
174. E-mail from Anonymous I, supra note 75.
175. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Training on Detainee Packets and
Tactical Site Exploitation (TSE) (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50, at 27.
176. Id.
177. E-mail from Tyler Stegeman, supra note 163.
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[Vol. 51:549 That sort of time commitment exposes a unit to an increased risk of
attack on site and upon withdrawal. Nonetheless, by the late mandate
period, servicemembers had begun to internalize the value of the
evidence-oriented approach. On one hand, Stegeman explains:
There were several situations where we were in a considerably
hostile situation and in order to secure our detainees and
exfiltrate the area without incident or loss of coalition forces
lives, we simply did a grab and go of immediate evidence and the
captured persons and gathered statements at the Detainee
Holding Facility. This typically meant that the detainee would
not be detained as long, but also meant that he was off the streets
for a longer period of time and that the Coalition Forces can find
them.178
But where the “situation was stable,” Stegeman elaborated:
[W]e were able to take time, pictures, collect evidence and
statements from local nationals, and effectively disengage the
areas without incident. Typical time for this usually lasted over
an hour, which usually meant we had to have assistance from
other units in the area to guard our exfiltration. The reason for
this is because typically, immediate retaliation by the enemy
would happen if we were there for over an hour. However, taking
the extra time typically meant that we were able to collect
enough evidence to put away the detainees for ten to fifteen
years.179
The most remarkable aspect of that statement is the implication that it
is the CCCI prosecution track — not security internment — that matters
if the goal is long-term detention of the enemy. Stegeman expressly
articulates that assumption at another point, commenting that “[o]ur
actions [in the late mandate period] were driven by the perception that if
we did not have the evidence, we would not be able to try the individual
in the Iraqi Court System.”180 Indeed, he explains that, failing an
adequate evidentiary haul against a potential detainee, “we typically
made the call on the ground to release the detainee so long as his name
was not on any [pre-determined] capture/detain list.”181 Summarizing
178. Id.; see also Office of the Staff Judge Advocate, 4th Infantry Division, After Action
Report, Operation Iraqi Freedom, November 2007–February 2009: Determining Which Soldiers
Require More Detailed Site Exploitation Training (Apr. 30, 2009), in TIP OF THE SPEAR, supra
note 50, at 27 (commenting that the “unit responsible for site exploitation often cannot remain on
the scene for a long time because of force protection concerns”).
179. E-mail from Tyler Stegeman, supra note 163.
180. Id.
181. Id.
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IRAQ AND THE MILITARY DETENTION DEBATE
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this state of affairs, Stegeman observes that these measures made
operations more difficult, “but when put in perspective of building
democracy and maintaining constitutional rights, the Soldiers
understood.”182
This perspective suggests that although refinement of the security
internment regime played a considerable role in convincing units in the
field to engage in greater efforts to secure and preserve evidence, the
prospect of success or failure on the CCCI prosecution track already
was exercising some similar influence even in the late mandate
period — before the latter ostensibly became the only game in town.183
By late 2007, at least some units had already internalized the view that
the “ideal” outcome in the detention setting was to transfer a detainee
from the TIF to Iraqi custody for prosecution before the CCCI, reporting
that “pressure for such transfers and prosecutions increased during the
deployment [from August 2007 through May 2008].”184
A Marine battalion in Ramadi, for example, responded to improving
security conditions in 2008 by forming a “Ramadi Rule of Law
Working Group” including an array of stakeholders (from the
battalion’s operations officer to the local Provincial Reconstruction
Team and the District Police Transition Team).185 Among other things,
the group “met weekly to nominate and discuss new cases of detainees
in U.S. custody for transfer to Iraqi authority.”186
182. Id.
183. Whatever the source, an increasing orientation toward evidence demonstrated by the
U.S. military in the late mandate period was not necessarily shared by the Iraqi forces alongside
whom U.S. servicemembers were now more frequently operating in the field. After noting that
U.S. forces understood that they needed evidence to make a capture stick, Stegeman observed that
“it was very difficult to explain that to the Iraqi Army. They assumed that if a guy was caught, he
was immediately guilty.” Id. Others pointed to a distinct problem stemming from operations in
coordination with Iraqis. Captain Vallette states that “ISF [Iraqi Security Forces] were still more
of a burden [than] anything else” at this stage. “Often times we discovered that the police had
called their ‘friends’ and then the objective would be empty.” Email from Luther Vallette, supra
note 139. Captain Eric Dalbom, who deployed to Baghdad with the 10th Mountain Division from
mid-2006 through the beginning of 2008, concurred, with an emphasis on the risk of infiltration
of Iraqi forces by insurgents or insurgent-sympathizers. Dalbom also came away with the
impression that Iraq Army units “pretty much detained whoever they wanted and had few
restrictions regarding who they detained or how long they detained them for.” E-mail from Eric
Dalbom, supra note 109. Increasing reliance on Iraqi institutions for security operations, in this
view, would not necessarily inure to the benefit of potential detainees.
184. Regimental Judge Advocate, 2d Stryker Cavalry Regiment, After Action Report,
Operation Iraqi Freedom, August 2007–May 2008: Understanding the Iraqi Legal System in
Support of Prosecutions at CCCI (Feb. 17, 2009), in TIP OF THE SPEAR, supra note 50, at 39.
185. Battalion Judge Advocate, 1st Battalion, 9th Marines, After Action Report, Operation
Iraqi Freedom, March 2008–October 2008: Transfer of Detainees to ISF (Jan. 9, 2009), in TIP OF
THE SPEAR, supra note 50, at 50.
186. Id.
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[Vol. 51:549 Similarly, the 101st Airborne Division formed a Criminal
Investigative Task Force in 2008 to facilitate prosecution in anticipation
of the demise of security internment at the end of that year.187 At least
some of its component brigades followed suit by forming their own
Criminal Investigative Task Forces and developing battalion-level
procedures for prosecution support.188 Both the 10th Mountain Division
and at least some components of the 1st Cavalry Division, among
others, actually suspended reliance on security internment on October 1,
2008, in anticipation of the coming shift to reliance on Iraqi criminal
prosecution.189
The U.S. military’s strategic shift in the direction of
counterinsurgency theory during the late mandate period was not the
only institutional development that tended to promote greater focus on
evidence collection at the point of capture. Another involved predeployment training. According to Captain Marshall Clay, who served
with the 101st Airborne during the invasion and occupation phases and
then returned as a Civil Affairs Team Leader with the 24th Infantry
Division in 2008, training had changed markedly, producing a real
difference in conduct in the field.190 CaptainVallette concurs, noting
that by the time of his second deployment (spanning 2007 and 2008),
“training and guidance [had] greatly changed” from his experience with
his first deployment (spanning late 2004 and early 2005). “Home station
training and the national training centers,” he noted, had “quickly
adjusted to incorporate more ‘police’ type training and less conventional
warfare training.”191
187. Brigade Judge Advocate, 1st Brigade Combat Team, 101st Airborne Division (Air
Assault), After Action Report, Operation Iraqi Freedom, September 2007–November 2008:
Changes to Detainee Operations Resulting from Security Agreement Implementation (Jan. 15,
2009), in TIP OF THE SPEAR, supra note 50, at 53.
188. Id.
189. Brigade Judge Advocate, 4th Brigade Combat Team, 1st Cavalry Division, After Action
Report, Operation Iraqi Freedom, June 2008–June 2009: Legal Reviews of ACSA Exchanges
(Aug. 14, 2009), in TIP OF THE SPEAR, supra note 50, at 285; Office of the Staff Judge Advocate,
10th Mountain Division (Light Infantry), After Action Report, Operation Iraqi Freedom, May
2008–May 2009: Transition to Security Agreement (SA) (June 25, 2009), in TIP OF THE SPEAR,
supra note 50, at 55.
190. Clay also notes that the two periods also differed in terms of the availability in the latter
period of an increasingly well-resourced and professional set of Iraqi security and police forces.
See E-mail from Marshall Clay, supra note 37. Others pointed to technological factors, such as
the deployment of handheld systems that facilitated the capacity of servicemembers to collect
biometric data in the field quickly and efficiently, thereby easing the task of firm and
documentable identification. See E-mail from Tyler Stegeman, supra note 163.
191. E-mail from Luther Vallette, supra note 139; cf. E-mail from Connor Crehan, Captain,
U.S. Army (noting the high-polish that detention procedures had reached by the time he was
deployed: “[S]oldiers were sent through classes to learn all the proper techniques and procedures
when dealing with detainees. These procedures were consistent through the deployment. . . .
These procedures dictated training prior to our deployment.”) (on file with Virginia Journal of
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IRAQ AND THE MILITARY DETENTION DEBATE
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Perhaps the most significant indicator of the changing detention
environment of the late mandate period stemmed from the Provincial
Iraqi Control (PIC) program.192 The broad purpose of PIC was to
transfer governmental responsibility, including primacy in security
affairs, to the Government of Iraq in those provinces that had stabilized
sufficiently for that purpose, as the progression of events warranted.193
Foreshadowing the new era that would arrive nationwide in Iraq in
2009, the U.S. military in PIC provinces abandoned long- and mediumterm detention in U.S. military custody in favor of turning “over all
detainees to Iraqi control within 24 hours.”194 That is to say, as early as
2006, the United States became open to foreswearing security
internment in favor of supporting the Iraqi criminal justice system under
the PIC.
IV.
THE SECURITY AGREEMENT PHASE (JANUARY 2009–
PRESENT): MAXIMIZING THE PROSECUTION-SUPPORT MODEL
At the peak of the security internment program during the late
mandate period, the U.S. military held more than 26,000 individuals
under that status at a single point in time.195 Less than three years later,
however, that population is rapidly approaching zero.
This dramatic change marks the penultimate step in the progression
of the detention policy cycle for the U.S. military in Iraq. That cycle
began with the highly discretionary combatant and security internment
detention systems that were applicable during the invasion and
occupation phases. It progressed to a two-track system in which security
International Law Association). Not all aspects of pre-deployment training were well-tuned to the
evolving circumstances in Iraq, however. The Staff Judge Advocate of the Fourth Infantry
Division, which deployed in late 2007, noted that at least some pre-deployment training had
focused on the conduct of Article 5 Tribunals, which were never used at this stage of the Iraq
experience. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Training for Article 5 Tribunals (Apr.
30, 2009), in TIP OF THE SPEAR, supra note 50, at 20. Another Staff Judge Advocate whose unit
also deployed in 2007 expressed a similar view, complaining that training on detention operations
had been “very generic and failed to include any theater-specific training or SOPs.” Office of the
Staff Judge Advocate, 3d Infantry Division (Mechanized), After Action Report, Operation Iraqi
Freedom, March 2007–June 2008: Lack of Training on Theater-Specific DetOps and
Interrogations Procedures (Sept. 23, 2008), in TIP OF THE SPEAR, supra note 50, at 23.
192. For an overview of PIC, see Dep’t of Def., Dep’t of Def. U.S. Army Releases, The Road
Ahead: Iraqi Provincial Control Desired End-State (2006), available at 2006 WLNR 20923244;
Dep’t of Def., Dep’t of Def. U.S. Army Releases, Seminar Addresses Iraqi Security Challenges
(2006), available at 2006 WLNR 7441364.
193. See id.
194. Brigade Judge Advocate, 4th Brigade Combat Team, 1st Cavalry Division, After Action
Report, Operation Iraqi Freedom, June 2008–June 2009: Detainee Processing in Provincial Iraqi
Control (PIC) Provinces (Aug. 14, 2009), in TIP OF THE SPEAR, supra note 50, at 29.
195. Bill, supra note 40, at 411.
598
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[Vol. 51:549 internment remained available alongside an increasingly capable hostnation prosecution system, with those tracks converging over the years
of the mandate phase as the perceived demands of counterinsurgency
drove the United States to adopt more restrictive security internment
practices and to emphasize the prosecutorial track to a greater extent.
With the arrival of the security agreement phase at the outset of 2009,
this convergence pattern neared its logical conclusion: The United
States formally abandoned the security internment regime in favor of an
exclusive focus on the law-enforcement support track.196
The security agreement phase provides a remarkable case study of
the U.S. military adapting to the complexities of an environment in
which insurgency and terrorism continue, yet diplomatic and political
considerations preclude the continued resort to more conventional
modes of military operation. It is a case study in the way in which the
military might adapt to the increasingly common scenario of stability
operations in a highly insecure overseas environment.
Driven by strategic necessity, the military in Iraq has embraced its
law enforcement support function to a remarkable extent in recent years,
including through revised training and adoption of an array of
innovative institutional structures. As a result, the military is more
capable of and interested in facilitating prosecutorial outcomes today
than it was in years past — much more so than is commonly
appreciated — notwithstanding the fact that this transformation is taking
place in an overseas, quasi-battlefield context. At the same time,
however, close examination of the security agreement phase also draws
attention to a number of persistent limitations on the efficacy of the
prosecution model.
At a higher level of generality, close study of the security agreement
phase provides two further lessons. First, it shows that study of the
formal legal rules associated with detention policy may not fully capture
the on-the-ground reality of detention practice. It is tempting to assume
that no elements of detention without criminal charge remain operative
in Iraq. But some who end up in the Iraqi criminal justice system never
actually receive a trial. These “defendants” exist in a de facto state of
security internment, albeit administered by the government of Iraq
rather than the U.S. military. More significantly, some amount of U.S.administered security internment actually continues to this day, pursuant
to an “all deliberate speed”-style caveat to the obligation to either
release detainees or transfer them to the Iraqis for prosecution. Relying
on this caveat since January 2009, the United States maintains a rump of
196. See infra Part IV.A.
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security internment for about 200 dangerous, yet difficult to charge,
individuals.
And that leads to the second — and potentially more important —
lesson. Detention regimes such as security internment are not, in fact,
perpetual. On the contrary, they are bound to decay under the weight of
changing diplomatic and political circumstances. Sooner or later,
overseas detention operations must wind down. That day can be
delayed, as the U.S. military is currently demonstrating with respect to
its rump security internee population, but, when our forces withdraw,
their capacity to detain someone in Iraq will vanish with them. We face
this reality today in Iraq. And, one day, we will also face it in
Afghanistan.
A.
The Formal Demise of Security Internment
The security internment system ended at midnight on January 1,
2009, after a run of nearly five years.197 Its demise reflected a deliberate
policy choice by the United States and Iraq to phase out that system and
to rely instead on the Iraqi criminal justice system as the sole
mechanism for detention going forward. Or so it appeared on the
surface.
The negotiations that led to the U.S.–Iraq Security Agreement took
place against the backdrop of the pending expiration of the most recent
UN Security Council Resolution providing a mandate for the U.S.
military presence in Iraq in general and, among other more specific
things, the ongoing use of security internment.198 From a legal
perspective, nothing precluded pursuit of yet another extension of that
mandate. But, from a diplomatic perspective, it was clear in 2008 that
the U.S. presence going forward would instead have to be governed by a
bilateral agreement, and there seems to have been little desire on the
part of either state to preserve the security internment system.
There was, however, considerable concern regarding the fate of the
large existing security internee population. Might the Iraqis demand
rapid and comprehensive transfer of all such detainees to their custody,
followed by mass, precipitous releases? It eventually became clear that
this would not be an issue, that the Government of Iraq understood the
need to continue to incapacitate dangerous individuals (at least in cases
involving Sunnis and those involving Shiites loyal to Moqtada al-Sadr
rather than establishment Shiite political figures).199 The question, then,
197. See, e.g., Karen DeYoung, Lacking an Accord on Troops, U.S. and Iraq Seek a Plan B,
WASH. POST, Oct. 14, 2008, at A01.
198. S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007).
199. See Telephone Interview with W. Renn Gade, supra note 34.
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[Vol. 51:549 was whether the Iraqi criminal justice system had the capacity to handle
the increased number of security-related cases that would result from
shutting down the security internment track, both going forward and in
terms of keeping custody of at least some current security internees.
Ultimately, the negotiators reached a level of comfort on this question,
and the agreement was signed.200
The Security Agreement came into force immediately upon the
expiration of the last UN Security Council mandate at the end of 2008.
Under its terms, U.S. forces retained the “right to legitimate self defense
within Iraq,” but could carry out “military operations” only “with the
agreement of the Government of Iraq.”201 U.S. forces would only have
limited powers to detain going forward (aside from detaining members
of their own forces and their own “civilian component”). Under the new
system, U.S. forces could detain only pursuant to “an Iraqi decision
issued in accordance with Iraqi law”202 — that is, pursuant to an Iraqi
arrest warrant — or upon a request for assistance from Iraqi
authorities.203 Regardless of the basis for the detention, moreover, “such
persons must be handed over to competent Iraqi authorities within 24
hours from the time of their detention or arrest.”204
This account of the adoption of the Security Agreement and its
contents might give the impression that the law applicable to detention
in Iraq simply changed overnight, and that U.S. forces had to conform
their operations accordingly. But, although formal legal change was the
mechanism through which this transition was expressed and enforced, it
was not the underlying cause of the transition. As with earlier stages in
the detention-policy life cycle in Iraq, formal legal change at the
200. See Agreement Between the United States and the Republic of Iraq on the Withdrawal of
United States Forces from Iraq and the Organization of their Activities during their Temporary
Presence in Iraq, U.S.–Iraq, Nov. 17, 2008, available at http://tinyurl.com/68xjvks [hereinafter
Security Agreement].
201. Id. art. 4, paras. 1–2.
202. Id. art. 22, para. 1.
203. Id. art. 22, para. 3. For at least one unit, the demise of the UNSCR mandate raised the
question of whether the International Covenant on Civil and Political Rights (ICCPR) would
henceforth apply in some fashion to U.S. detention-related operations in Iraq. Asymmetric
Warfare Group, After Action Report, Operation Iraqi Freedom, November 2008–April 2009:
Application of International Covenant on Civil and Political Rights (ICCPR) (Apr. 17, 2009), in
TIP OF THE SPEAR, supra note 50, at 83. Interestingly, a related question arose in a different
context, resulting in an AAR statement to the effect that the situation in Iraq continued to be an
internal armed conflict subject to Common Article 3 of the Geneva Conventions. See Individual
Augmentee, Office of the Staff Judge Advocate (Rule of Law Section), Multi-National Force–
Iraq, After Action Report, Operation Iraqi Freedom, January 2009–April 2009: Impact of the
Security Agreement on Applicability of LOAC (May 2009), in TIP OF THE SPEAR, supra note 50,
at 98 (concluding that the law of armed conflict (LOAC) continued to apply within Iraqi
territorial waters).
204. Security Agreement, supra note 200, art. 22, para. 2.
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IRAQ AND THE MILITARY DETENTION DEBATE
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beginning of 2009 did not occur spontaneously. It was the product of
the shifting strategic perceptions of the American and Iraqi governments
in relation to, among other things, the best response to the persistence of
the insurgency.
American policymakers understood their interests to lie in an
approach to counterinsurgency that emphasized the viability of Iraqi
institutions and the strength of the rule of law in Iraq. General Petraeus
and Ambassador Crocker had jointly declared “rule of law”
enhancement to be a “line of operation” in their Joint Campaign Plan of
December 2008.205 The elimination of formal security detention in
American custody and the elevation of the Iraqi criminal prosecution
system to primacy would ostensibly serve these ends. As summarized in
one After Action Report, “it should be the goal of all operations to
detain and prosecute detainees to bolster the rule of law in Iraq.”206
B.
The U.S. Military as a Comprehensive Criminal Law Support
Service
What did this transition entail in actual practice? Simply put, it meant
that, from 2009 onward, the U.S. military would function in significant
part as a criminal investigation, arrest, and trial support service in Iraq.
In that capacity, it assisted with the arrest and prosecution of at least
1393 individuals between January 2009 and July 15, 2010 (mostly
described as members or associates of al-Qa’ida in Iraq, according to
press releases issued by U.S. Forces–Iraq), while simultaneously
screening more than 15,000 legacy detainees for either outright release
or transfer into the Iraqi criminal justice system.207
Under pressure to accomplish these missions, units have adapted in
varied and often highly creative ways. At a time when our domestic
political dialogue seems incapable of seriously addressing how best to
205. See Richard Pregent, Building Rule of Law Capacity in Iraq, 40 ISR. Y.B. ON HUM. RTS.
159, 160, 179 (“[R]ule of law became a line of operation in the new [Joint Campaign
Plan] . . . .”); Sean Alfano, New Military Plan at Odds with Congress, CBS NEWS, July 24, 2007,
http://tinyurl.com/yaajxtd (identifying Gen. David Petraeus and Ambassador Ryan Crocker as coarchitects of the Joint Campaign Plan). The military’s focus on “stability” operations in Iraq, as
distinguished from a focus on conventional combat operations, was foreshadowed doctrinally by
the Pentagon’s 2005 decision to elevate “stability operations” in the abstract to the status of a
“core military mission,” thereby laying the groundwork for a broad range of training, doctrinal,
and practical shifts in the direction of such operations. See Pregent, supra, at 178–79.
206. Special Operations Task Force-West, After Action Report, Operation Iraqi Freedom,
March 2009–September 2009: Securing Convictions in Iraqi Courts (on file with the Virginia
Journal of International Law Association).
207. The arrest-and-prosecution figure constitutes the total number of arrests reported in press
releases posted to the website of U.S. Forces–Iraq as of July 15, 2010; the screening figure
derives from the same sources. See Press Releases, UNITED STATES FORCES–IRAQ,
http://www.usf-iraq.com/news/press-releases (last visited July 15, 2010).
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[Vol. 51:549 reconcile the roles of prosecutors, police, warriors, and intelligence
officers in the terrorism context, the U.S. military has quietly been
obliged by circumstance to sort out these questions on a very large scale
in Iraq.
It does not follow, of course, that the solutions employed by the
military in Iraq since 2009 are generalizable or even laudable. But it
does follow that we should pay close attention to what has been done.
Toward that end, the first subpart of this section surveys the basic
elements of the “prosecution-based targeting” model currently
employed by the U.S. military in Iraq. The second subpart surveys a
variety of institutional innovations adopted by the military in
furtherance of that model.
1.
The Basic Elements of the “Prosecution-Based Targeting”
Model
The Iraqi criminal justice system under the Security Agreement
remains much as it was during the mandate phase: an inquisitorial
system in which an investigating judge plays a critical role in terms of
assembling the evidence and deciding whether to authorize arrest,
pretrial detention, and, for that matter, trial itself. The relative
significance of obtaining warrants has increased considerably, however,
as the U.S. military in the Security Agreement era is much more likely
than before to be involved in detention on a targeted basis. Some units
have adopted the nomenclature “warrant-based targeting” to describe
the U.S. military’s role.208
As with the overall prosecution process, the warrant-application
process has not notably changed since 2008. One unit summarized the
current state of affairs as follows:
[The] core requirements [for obtaining] a warrant from an Iraqi
judge . . . include a photo of the individual, full Iraqi name if
possible, summary of the criminal events as detailed as possible,
at least one eyewitness, disposition of evidence or turn[ing] over
the evidence if it still exists, identification of the location of the
crime for jurisdictional purposes, crime scene and other related
photos, and declassified link diagrams. Some judges, however,
had additional requirements . . . . [Thus,] the [brigade] sought to
build all warrant packages applying the “strictest requirements
approach.209
208. See, e.g., 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report,
Operation Iraqi Freedom, October 2008–June 2009: Transition to Warrant-Based Targeting (on
file with the Virginia Journal of International Law Association).
209. 1st Brigade Combat Team, 1st Cavalry Division, After Action Report, Operation Iraqi
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Obtaining a warrant, of course, did not guarantee that the person in
question would remain in custody pending trial, and still less that the
person would be convicted and hence incarcerated over some longer
period. “After arrest,” for example, “an IJ had to grant a detention order
allowing the accused to remain in custody.”210 And, as noted above, all
of this was preliminary to the decision of the trial panel on the ultimate
question of guilt.
From this perspective, the phrase “warrant-based targeting” is
problematic. It implies that the military has done its job once it obtains
the requisite warrant and then carries out the arrest. That much is useful
for disruption purposes,211 no doubt, and possibly for purposes of shortterm tactical intelligence gathering as well. But, if the goal is to
incapacitate the individual for more than a brief period, then the mission
is a failure should the person not actually remain in custody going
forward, pending trial (which requires a detention order from the IJ) and
after (which requires a conviction, of course). Thus, some JAs have
advanced the more holistic phrase “prosecution-based targeting.”212
The point is not merely academic, for the effort required to obtain a
warrant is not necessarily enough to obtain a conviction in the end. As
summarized in one AAR:
[A pair of JAs in late 2008 met with an Iraqi IJ] to determine the
requirements for getting a warrant. They found getting the
warrant itself was not very difficult, but the amount of evidence
they needed for the warrant was not enough to prosecute the
detainee successfully. Therefore, the [brigade] continued to
emphasize the collection of evidence for prosecution, even after
obtaining a warrant.213
That same unit noted that the temptation to focus just on warrants —
instead of the ultimate outcome in the case — was reinforced by a
natural tendency in the field to focus on the immediate operational
horizon. Thus, the unit at times did not even attempt to learn what
Freedom, February 2009–January 2010: Best Approach for Obtaining an Iraqi Warrant (on file
with the Virginia Journal of International Law Association).
210. Regimental Judge Advocate, 2d Stryker Cavalry Regiment, supra note 184, at 39.
211. See, e.g., Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom,
November 2008–April 2009: Resistance of Units to Involvement in Law Enforcement Functions
During Stability Operations (Apr. 17, 2009), in TIP OF THE SPEAR, supra note 50, at 171–72
(“[C]ommand emphasis traditionally has focused on getting an insurgent off the street, even for a
short time, rather than on obtaining a conviction (e.g., ‘rolling up’ an insurgent paymaster a day
or two before he’s due to pay group members).”).
212. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Prosecution-Based Targeting (on file with Virginia
Journal of International Law Association).
213. Id.
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[Vol. 51:549 became of the cases: “The brigade did not do a good job of tracking
detainees after turning them over to [Iraqi authorities]. After capture,
battalions instead focused on the next target.”214 Others expressed a
similar view, noting a “disconnect” among soldiers concerning the
meaning of success in this setting: “Some people thought success meant
the issuance of a warrant; others thought success meant successful
prosecution.”215
Not surprisingly, perhaps, these changes of objective and procedure
were not always an easy sell for units that were accustomed by training
and past practice to the relatively forgiving nature of the security
internment system. One unit lamented that it was “tempting to continue
using the more advantageous detention procedures as long as possible,”
and thus that the brigade did not switch to the new system “until a few
days before the implementation of the [Security Agreement]” and as a
result lost the chance “to work out all of the kinks in the process” in
advance.216 Another unit commented that the “change from kinetic
operations was frustrating for many Soldiers because it meant
involvement in police-type work, for which they lacked training.”217
Still another noted particular reluctance to focus on law enforcement
methods during the early months of the Security Agreement era, though
it also observed that the shift went over better once framed in terms of
its relevance to advancing the larger counterinsurgency strategy.218
Some units remained hostile to the change, however, with one offering
the view that “if the United States has occasion to sign a security
agreement in Afghanistan or elsewhere, it should strongly oppose
allowing host nation officials to deny warrants. Nothing should prevent
214. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Detainee Tracking (on file with the Virginia Journal of
International Law Association).
215. Office of the Staff Judge Advocate, 10th Mountain Division (Light Infantry), After
Action Report, Operation Iraqi Freedom, May 2008–May 2009: Goal of Warrant-Based
Detention Operations (June 25, 2009), in TIP OF THE SPEAR, supra note 50, at 63; see also
Brigade Judge Advocate, 4th Brigade Combat Team, 1st Cavalry Division, After Action Report,
Operation Iraqi Freedom, June 2008–June 2009: Thinking Beyond Merely Getting the Warrant
(Aug. 14, 2009), in TIP OF THE SPEAR, supra note 50, at 63–64; Director, Interagency Rule of
Law Coordinating Center, After Action Report, Operation Iraqi Freedom, June 2008–June 2009:
Detention Mission Extends Beyond Obtaining a Warrant or Transferring a Detainee to Iraqi
Authorities (June 29, 2009), in TIP OF THE SPEAR, supra note 50, at 64.
216. 2d Heavy Brigade Combat Team, 1st Infantry Division, supra note 208.
217. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Change in Culture and
Responsibilities of U.S. Forces (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50, at 54; see
also Brigade Judge Advocate, 4th Brigade Combat Team, 1st Cavalry Division, After Action
Report, Operation Iraqi Freedom, June 2008–June 2009: Mindset Change (Aug. 14, 2009), in TIP
OF THE SPEAR, supra note 50, at 55 (“Some units had a difficult time waiting for the warrant
process to work, especially when they were after insurgents who recently targeted U.S. forces.”).
218. Asymmetric Warfare Group, supra note 211.
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IRAQ AND THE MILITARY DETENTION DEBATE
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U.S. forces from going after individuals who threaten them.”219 Several
others cautioned about potentially detrimental impacts on morale.220
The prospect of institutional resistance to a change of this nature
draws attention to the question of compliance. How, precisely, are units
persuaded to conform to life without the security internment option?
Commanders and JAs play a critical role in that respect, of course.221
But compliance can also be bureaucratized effectively by adopting
standard operating procedures and policies for key institutions within
the detention system. As noted above, this occurred in the early mandate
phase when TIFs were directed to simply refuse custody of detainees in
the absence of appropriate documentation. As it turns out, much the
same thing occurred in the Security Agreement era while the TIFs still
remained under U.S. control.
As one military police unit explained in its AAR, the Security
Agreement resulted in “new requirements for in-processing detainees
into the TIF. The detention packet must now include a detention order
signed by an Iraqi judge,” as well as “a request from a ‘competent Iraqi
authority’” — an Iraqi judge — “to transfer the detainee to coalition
forces,” and further, a memorandum signed by a U.S. military officer
asserting the need for detention in a U.S. facility.222 The same unit
noted that units at times failed to comply with these formalities, leading
to questions about the adequacy of the training of the capturing units.223
Other units also emphasized the stringency of “paperwork
requirements” at TIFs in the Security Agreement era.224 Of course, now
219. 2d Brigade Combat Team, 4th Infantry Division, After Action Report, Operation Iraqi
Freedom, September 2008–August 2009: Merits of the Old Detention Operations (DetOps)
Regime (on file with the Virginia Journal of International Law Association).
220. See 1st Battalion, 5th Special Forces Group, After Action Report, Operation Enduring
Freedom, July 2009–January 2010: Gaining Trust of ODAs on Detention Matters (on file with the
Virginia Journal of International Law Association) (cautioning that “ODAs [Operational
Detachment Alphas] inevitably will distrust the detention process” and noting that this can extend
to distrust of the battalion legal advisor); E-mail from Anonymous I, supra note 75 (“Knowing
who the extremists were, and knowing that they had killed Americans, but being unable to get
warrants definitely affected the morale of my Soldiers. The warrant process was very frustrating
and seemingly impossible to crack.”); E-mail from Chris Manglicmot, Captain, U.S. Army (Mar.
23, 2010, 21:46 CST) (on file with the Virginia Journal of International Law Association) (“As
the detention procedures became more restrictive, the soldier’s morale did decrease . . . .”).
221. For a discussion of the role of JAs as compliance officers in general, see Laura
Dickinson, Military Lawyers on the Battlefield: An Empirical Account of International Law
Compliance, 104 AM. J. INT’L L. 1 (2010).
222. 11th Military Police Brigade, After Action Report, Operation Iraqi Freedom, August
2008–June 2009: Insufficient Documentation for Detainees (on file with the Virginia Journal of
International Law Association).
223. 11th Military Police Brigade, After Action Report, Operation Iraqi Freedom, August
2008–June 2009: Common Deficiencies in Detainee Packets (on file with the Virginia Journal of
International Law Association).
224. 1st Battalion, 5th Special Forces Group, After Action Report, Operation Iraqi Freedom,
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[Vol. 51:549 that the last TIF has been transferred to Iraqi control, the capacity of
U.S. forces to engage in insufficiently documented detentions —
particularly detention without an appropriate Iraqi judicial
authorization — is still more reduced, though not entirely eliminated.
2.
Innovative Reponses to the Prosecution-Based Targeting
Model
It is one thing to compel U.S. forces to limit their detention practices
to the prosecution-based targeting model. But it does not follow that the
military will be particularly effective in this role. Indeed, insofar as
effectiveness entails an emphasis on “law enforcement” methods such
as gathering and preserving evidence, one cannot help but think of the
oft-repeated claim that soldiers are not trained for, experienced in, or
suited for such a function. To be fair, such claims may be meant to
apply primarily or exclusively in relation to conventional combat
operations in which the goal is to destroy the enemy force using all
lawful means, not counterinsurgency or stability operations in which the
mission may require such skills. Nonetheless, such claims do resonate,
reflecting a common assumption that soldiers do not train in such skills
and that the military is not otherwise organized to execute law
enforcement-related missions.
That assumption may well have been accurate as recently as 2008
and the late mandate phase. Since that time, however, and especially
since the onset of the Security Agreement phase, the matter is more
complicated. Under pressure to accomplish a mission that has been
defined for some time now in law-enforcement-related terms, units in
the field have adopted a variety of institutional innovations directed at
increasing the prospects for conviction — some of which have also
turned out to be rather useful from the perspective of traditional military
intelligence-gathering interests as well. None of that means that
servicemembers are necessarily prepared for second careers as crime
scene investigators, nor that it is wise for the military to focus on
prosecution support in circumstances where other options are available,
consistent with operational objectives and strategic aims. But it does
mean that, in response to strategic necessity, the U.S. military in recent
years has developed law-enforcement-related capacities and practices at
the individual and unit level that it did not previously possess.
July 2009–January 2010: CJSOTF-AP THF Paperwork Requirements (on file with the Virginia
Journal of International Law Association).
2011]
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IRAQ AND THE MILITARY DETENTION DEBATE
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The Prosecution Task Force
One of the most notable examples is the arrangement known as the
Prosecution Task Force (PTF).225 As one brigade explained in its AAR,
the point of creating a PTF was “to coordinate ‘prosecution-based
targeting’ and see the process through from targeting through
prosecutions.”226 The PTF for that brigade was chaired by the brigade
combat team commander himself, who personally sat in on its meetings
on a weekly basis.227 The head of the Fires and Effects Coordination
Cell served as the daily Officer-in-Charge for the PTF, and other
members included the Brigade Judge Advocate, the brigade targeting
officer, the assistant S2 (intelligence officer), various S2 analysts, the
provost marshal, and law enforcement personnel attached to the
brigade.228 Another brigade employed a similar system, referring to it as
the Blue Star Task Force.229
The utility of a PTF model, whatever one may call it, is obvious
enough. It is a forum in which relevant stake holders within the military
can identify in advance — and hopefully resolve — the issues that
might otherwise prevent success in the prosecution-based targeting
system. The JA is there to ensure mutual understanding of the
applicable legal standards, both to obtain a warrant and later actually to
get the conviction. The S2 is there to defend the legitimate equities of
intelligence, especially the long-term benefits of protecting sources and
methods — and along with the analysts — to ensure a focus on the
proper individuals as targets. The more stakeholders with genuine
decision-making power present, and the more types of expertise present,
the better. Even if operational imperatives prevent completion of an
adequate evidentiary package prior to arrest, a PTF still provides an
institutional basis for quick follow-up to obtain the requisite detention
order and other forms of support on the road to the actual trial.230
225. Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom, November
2008–April 2009: Establishment of Prosecution Task Forces (PTFs) at Division and Brigade
Levels (Apr. 17, 2009), in TIP OF THE SPEAR, supra note 50, at 40, 40–41.
226. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Prosecution Task Force (PTF) (on file with the Virginia
Journal of International Law Association).
227. Id.
228. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Prosecution Task Force (PTF) (on file with the Virginia
Journal of International Law Association); see also 30th Heavy Brigade Combat Team (National
Guard), After Action Report, Operation Iraqi Freedom, April 2009–January 2010: Prosecution
Task Force (PTF) (on file with the Virginia Journal of International Law Association).
229. Brigade Judge Advocate, 4th Brigade Combat Team, 1st Cavalry Division, After Action
Report, Operation Iraqi Freedom, June 2008–June 2009: Blue Star Task Force (Aug. 14, 2009), in
TIP OF THE SPEAR, supra note 50, at 144.
230. “The ideal situation would have been to obtain enough evidence for a complete
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[Vol. 51:549 PTFs are useful not just for unity of effort within particular units, but
also for the critical task of fostering amicable and trusting relationships
with Iraqi judicial authorities. Indeed, the AARs from 2009 are replete
with references to the significance of these relationships. One brigade’s
PTF sent a substantial team — including either the Brigade Judge
Advocate or the Brigade Trial Counsel, as well as an NCO from the
Brigade’s targeting cell and various S2 analysts — to meet every week
with the IJs, both to talk business (including a preview of possible
upcoming targets) and simply in order “to build a relationship.”231 And
they did the same with Iraqi police — “a critical relationship as well,
since all evidence had to go through the police investigator to the IJ.”232
Notably, the team also managed to coordinate group meetings with the
IJ and police investigators for purposes of transferring evidence, thus
helping to eliminate miscommunication and delay.233
The point about the importance of relationships and communication
with the Iraqis is worth extending to the context of Iraqi Security Forces
(ISF) — especially the Iraqi Army — which might have no formal voice
in the prosecution system but which nonetheless have a de facto veto, in
that U.S. forces cannot deploy to execute a warrant without their
participation.234 At least one brigade lamented in its AAR that it should
prosecution packet prior to detention. However, practically, the BCT needed to remove targets
from the battlefield quickly, resulting in timely warrants with follow-through by the BCT
Prosecution Task Force to complete the prosecution packet with the IJ.” Brigade Judge Advocate,
2d Heavy Brigade Combat Team, 1st Infantry Division, supra note 168.
231. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Relationship Building with IJs and Police Investigators
(on file with Virginia Journal of International Law Association).
232. Id. Other units, which may or may not have made efforts to build relationships of this
kind, encountered far more trouble, to the point of being denied entry into courts when seeking to
obtain warrants. See 1st Battalion, 5th Special Forces Group, After Action Report, Operation Iraqi
Freedom, July 2009–January 2010: U.S. Forces Not Allowed Inside Iraqi Courts (on file with the
Virginia Journal of International Law Association) (describing exclusion from court). Another
unit observed that “[s]uccessful prosecutions drop dramatically when the relationship with the
head judge [of a provincial court] is sour,” with “some judges simply refus[ing] to use evidence
coming from U.S. forces.” Office of the Staff Judge Advocate, 10th Mountain Division (Light
Infantry), After Action Report, Operation Iraqi Freedom, May 2008–May 2009: Relationships
with Iraqi Provincial Judges (June 25, 2009), in TIP OF THE SPEAR, supra note 50, at 47; see also
Director, Interagency Rule of Law Coordinating Center, After Action Report, Operation Iraqi
Freedom, June 2008–June 2009: Obtaining Warrants from Iraqi Investigative Judges (IJs) (June
29, 2009), in TIP OF THE SPEAR, supra note 50, at 62 (warning that the “specific requirements for
obtaining a warrant depend upon the requestor’s relationship with the IJ,” and that “[s]omeone
who does not have a good relationship may find the requirements [for getting a warrant]
onerous”).
233. 2d Heavy Brigade Combat Team, 1st Infantry Division, supra note 231.
234. E-mail from Anonymous I, supra note 75 (answer to question 15) (“[Iraqi Security
Forces] soon realized that if they said ‘no’ then we could not conduct the mission. This caused us
to receive ‘buy in’ from the commanders ahead of time. To get their approval we had to discuss
with them the details of the mission which in turn increased my security concerns. In reality, we
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IRAQ AND THE MILITARY DETENTION DEBATE
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have involved ISF personnel in its targeting deliberations before
troubling to get the warrant, in order to “save the [brigade] the trouble
of developing a targeting packet and obtaining a warrant for an
individual the ISF would refuse to target.” 235
In the same spirit, another brigade commented that it was wise to
identify targets for arrest with Iraqi input in advance, lest Iraqi Security
Forces turn out to be unwilling to cooperate, as when the United States
sees someone as a threat and the Iraqis see the same person as a
“community leader.”236 Of course, the decision of whom to involve and
when to involve them in advance of a capture attempt is an exceedingly
delicate one, particularly where sectarian divisions are relevant. But, in
any event, the PTF mechanism and others like it provide likely
mechanisms for addressing such concerns proactively.
Other units have had similar positive experiences with the PTF
model. The 56th Stryker Brigade Combat Team (Pennsylvania National
Guard), for example, had a PTF that “transformed actionable
intelligence into evidence for the purposes of arresting, detaining,
prosecuting and convicting insurgents. The PTF synchronized the
efforts of the targeting cell, counter-intelligence and interrogation
personnel, law enforcement professionals (LEPs), S2, Iraqi Police
advisors, and battalion personnel.”237 As a result, the PTF obtained over
1000 warrants in the first nine months of 2009,238 and more generally
established a working pattern of “develop[ing] an unclassified warrant
packet concurrently with the development of intelligence.”239
For all their apparent utility and success, however, it is not clear that
the PTF model has been adequately supported as an institutional matter
in terms of personnel. Consider that having experienced law
enforcement personnel attached to a brigade can make a considerable
had very few issues of them leaking information that caused us casualties, but we often times had
‘dry holes.’”); cf. E-mail from Chris Manglicmot, supra note 220 (answer to question 15) (“As
ISF began taking the lead, our intent to share more information did increase operational security
concerns. However, the reward for ISF to take the lead and become more independent was worth
the necessary risk.”).
235. 2d Brigade Combat Team, 4th Infantry Division, After Action Report, Operation Iraqi
Freedom, September 2008–August 2009: Joint Targeting (on file with the Virginia Journal of
International Law Association).
236. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Working with ISF and Iraqi Judges to
Obtain Iraqi Warrants (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50, at 59.
237. 56th Stryker Brigade Combat Team (Pennsylvania National Guard), After Action
Report, Operation Iraqi Freedom, January 2009–September 2009: Prosecution Task Force (on file
with the Virginia Journal of International Law Association).
238. Id.
239. 56th Stryker Brigade Combat Team (Pennsylvania National Guard), After Action
Report, Operation Iraqi Freedom, January 2009–September 2009: Warrant Packets (on file with
the Virginia Journal of International Law Association).
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[Vol. 51:549 difference for its PTF operations. One brigade described LEPs as “a
force multiplier with detention operations, warrant based targeting, and
even the rule of law.”240
It is not clear, unfortunately, that all brigades are so equipped, nor
that the U.S. government’s law enforcement community has been asked
to supply or is supplying the personnel that might be most effective
toward this end. At the same time, the military has its own share of
personnel issues in relation to the PTF concept. In some instances, it
seems, JAs who, upon arrival in theater, will be expected to run PTFs
have not actually been trained for this purpose. “There was no
formalized training for the program,” one unit cautioned.241 In a related
vein, other units have reported that they simply lacked the personnel to
fill key slots in the PTF, such as slots for intelligence analysts, and that
this shortfall had a discernible impact on the capacity of the PTF to
accomplish critical deconfliction tasks such as attempting to maximize
declassification of intelligence for purposes of use in obtaining a
warrant (and later, presumably, a conviction).242
b.
Other Innovations
The question of coordination with Iraqis also has been addressed by
creating Joint Investigative Committees (JICs), which, among other
things, have assisted with transporting IJs and other Iraqi personnel to
TIFs. JICs include, for example, an Iraqi IJ, an investigator with
intelligence experience from Iraq’s National Information and
Investigative Agency, an American JA, and criminal investigators from
the U.S. military.243 In the same vein, some units created a distinct
U.S.–Iraq fusion group known as the Combined Pre and Post Capture
Exploitation Cell (CP2CXC). The idea was to allow for “pre-staging in
the event of a time-sensitive target — when obtaining or executing a
240. 30th Heavy Brigade Combat Team (National Guard), After Action Report, Operation
Iraqi Freedom, April 2009–January 2010: Use of Law Enforcement Professionals (LEPs) (on file
with the Virginia Journal of International Law Association); see also Brigade Judge Advocate,
4th Brigade Combat Team, 1st Cavalry Division, After Action Report, Operation Iraqi Freedom,
June 2008–June 2009: Assignment of LEPs (Aug. 14, 2009), in TIP OF THE SPEAR, supra note 50,
at 61 (describing LEPs as “vital to warrant-based targeting,” and calling for assignment of LEPs
“down to the battalion level”).
241. 1st Brigade Combat Team, 1st Cavalry Division, After Action Report, Operation Iraqi
Freedom, February 2009–January 2010: Building Competence for the Prosecution Task Force
OIC (on file with the Virginia Journal of International Law Association).
242. 1st Brigade Combat Team, 1st Cavalry Division, After Action Report, Operation Iraqi
Freedom, February 2009–January 2010: Need for Intelligence Assets in the PTF (on file with the
Virginia Journal of International Law Association).
243. Director, Interagency Rule of Law Coordinating Center, After Action Report, Operation
Iraqi Freedom, June 2008–June 2009: Creation of Joint Investigative Committees (JICs) to
Support CCCI Prosecution (June 29, 2009), in TIP OF THE SPEAR, supra note 50, at 137.
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IRAQ AND THE MILITARY DETENTION DEBATE
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warrant — to make plans, gather personnel, and provide a central
location to which personnel could return for witness interviews,
document and media exploitation, IJ access, etc.”244
The CP2CXC is the operational and practical analogue to the PTF,
providing a one-stop shop for planning, executing, and following up on
the captures that the PTF presumably facilitated in the first instance.245
One unit emphasized the joint (U.S.–Iraq) aspect of the CP2CXC
concept, with physical co-location and coordinated planning and
exploitation serving to maximize information sharing, mutual “buy-in”
for operations, and compliance with the quick handover required by the
Security Agreement.246 That unit also emphasized that co-location could
facilitate (though not guarantee) immediate interrogation by an IJ (thus
enhancing the prospects for admissibility of the resulting statements).247
Whereas PTFs and the like have focused on detention operations
going forward, a comparable but distinct organization has emerged at
the corps level, primarily (though not exclusively) to assist with the
prosecution of legacy detainees. The Multi-National Corps–Iraq created
a Corps Investigative Task Force managed by a criminal investigative
division unit and staffed also by JAs, intelligence officers,
representatives of other law-enforcement-related organizations, and
representatives of various forensics facilities. Though primarily
concerned with facilitating the prosecution of the legacy detainees, the
Corps Investigative Task Force also would send “CID [criminal
investigative division] agents to assist” lower level units in developing
warrant packets, in obtaining post-arrest detention orders, and in
supporting subsequent prosecution.248
There is one final institutional innovation worth noting,
simultaneously mundane and unexpected: At least one unit simply went
out and hired a local Iraqi lawyer to act on its behalf in the Iraqi
criminal justice system. Specifically, the unit:
[R]etained a local attorney to support their interface with the
local courts. . . . They retained this attorney for one day per week
244. 56th Stryker Brigade Combat Team (Pennsylvania National Guard), After Action
Report, Operation Iraqi Freedom, January 2009–September 2009: Combined Pre and Post
Capture Exploitation Cell (on file with the Virginia Journal of International Law Association).
245. See id.
246. Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom, November
2008–April 2009: Establishment of Combined Pre- and Post-Capture Exploitation and
Intelligence Cells (CP2CXC) at Division and Brigade Levels (Apr. 17, 2009), in TIP OF THE
SPEAR, supra note 50, at 41.
247. See id.
248. Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom, November
2008–April 2009: Corps Investigative Task Force (CITF) (Apr. 17, 2009), in TIP OF THE SPEAR,
supra note 50, at 40.
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[Vol. 51:549 at a rate of $75 an hour. . . . This attorney and the [brigade’s Trial
Counsel] would appear in the IJ’s chambers to support the
investigation and prosecution of those suspected of attacking
U.S. Forces. When necessary, the [brigade] also retained local
attorneys to support the criminal appeals process. Local attorneys
were reluctant to take such cases because of fear of retaliation by
criminal or insurgent elements. As a result, legal support to an
appeal could cost $2000 per case.249
C.
The Limits of the Prosecution Model
Perhaps as a result of the benefits flowing from these various fusion
arrangements, at least some units applauded the switch from the security
internment regime to prosecution-based targeting under the Security
Agreement. As one AAR put it:
It was not at all crippling when units switched to warrant-based
detentions. Units were still able to interrogate those held by Iraqi
officials. Any loss of intelligence . . . did not appear to be
significant based on reports from fellow staff sections. . . .
Moving to their system has freed up attorneys, paralegals, and
unit resources.250
But not every unit was so positive. Many reported significant obstacles
to success in the Iraqi criminal justice system.
First, not all information available to U.S. forces can be used in an
Iraqi prosecution because of classification concerns relating to the
sources and methods of intelligence collection. Second, the Iraqi system
experiences some degree of bandwidth constraint as a result of
personnel shortages and periodic flooding of the system resulting from
the independent operations of ISF. Third, Iraqi judges and witnesses
frequently experience substantial intimidation from insurgents and
terrorists. Fourth, some Iraqi judges appear unreceptive to testimony
from U.S. personnel or even biased against any prosecution perceived to
be sponsored by the United States. Fifth, some Iraqi judges have been
reluctant to accept forensic forms of evidence, at least when sponsored
by American rather than Iraqi witnesses. Sixth, Iraqi judges give
relatively little weight to confessions made by defendants during
interrogation — at least in comparison to live witness testimony —
249. 2d Squadron, 1st Cavalry Regiment, After Action Report, Operation Iraqi Freedom,
January 2009–December 2009: Hiring an Iraqi Attorney to Interface with Local Courts (on file
with the Virginia Journal of International Law Association).
250. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Improvement of the Process with
Warrant-Based Targeting (Apr. 20, 2009), in TIP OF THE SPEAR, supra note 50, at 22.
2011]
IRAQ AND THE MILITARY DETENTION DEBATE
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though such statements are admissible in the Iraqi system. And seventh,
the fact that Iraqi forces now routinely take the lead at the point of
capture may have the unintended impact of decreasing the care with
which evidence is captured and preserved (though this may provide
certain offsetting benefits).
Institutional innovation can address these obstacles to a limited
extent. Appropriate coordination and advance planning carried out by
PTFs, for example, can ameliorate the problem of converting classified
information into usable evidence and may even help to increase the
chances for a confession to occur in the presence of an investigative
judge. Such organizational solutions can only go so far, however, and
certain other obstacles are simply endemic to the prevailing security
circumstances, institutional structures, and cultural climate of Iraq at a
given point in time.
1.
The Persistent Problem of Classified Information
Sometimes — perhaps frequently — there will be a gap between the
available intelligence about an individual and the subset of information
that the military will be willing to declassify for use against that person
in the Iraqi criminal justice system. As one brigade reported, “[m]ost of
the evidence [it] obtained against potential detainees was signals
intelligence- (SIGINT) based and classified. The G2 [intelligence
officer] balked at allowing the [brigade] to provide this information to
IJs to support warrant applications.”251 Another unit noted that SIGINT,
or intercepted communications, had provided a “stand-alone” basis for
security internment prior to 2009, but that it was no longer the “‘be all
end all’ it once was” because “we do not turn over classified
information to the Iraqis.”252 Still another pointed out that this problem
is not just a matter of SIGINT, but also human-sourced intelligence
(HUMINT) as well.253
PTFs and similar coordination efforts can ameliorate this problem,
however, even if they cannot always eliminate it. One brigade, for
example, integrated its intelligence officer (S2) directly into the warrant
251. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Development of Evidence and Actionable Intelligence
Using IJ Interrogations (on file with the Virginia Journal of International Law Association).
252. Brigade Judge Advocate, 2d Brigade Combat Team, 101st Airborne Division (Air
Assault), After Action Report, Operation Iraqi Freedom, October 2007–November 2008: Use of
Signals Intelligence (SIGINT) Pre/Post Implementation of the SA (Jan. 13, 2009), in TIP OF THE
SPEAR, supra note 50, at 53.
253. Office of the Staff Judge Advocate, 10th Mountain Division (Light Infantry), After
Action Report, Operation Iraqi Freedom, May 2008–May 2009: Use of Classified Evidence (June
25, 2009), in TIP OF THE SPEAR, supra note 50, at 62–63.
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[Vol. 51:549 application process. During sessions with investigative judges and Iraqi
police investigators, the S2 would give
an opening statement using a link diagram. Although these
statements did not count as evidence, they gave the IJ the
background information he needed to interrogate the detainees.
They let the judge know who the detainee is, who the detainee
knows in the insurgent network, and who the brigade wanted to
target . . . . This process largely replaced classified HUMINT and
produced actionable intelligence.254
By getting the S2 to make the presentation personally, moreover, the
brigade JA “gave the S2 a stake in the process.”255 As a result, the S2
became a “champion” of the prosecution-based targeting approach.256
Another organizational solution to ameliorate classification concerns
involved interrogations. As one unit came to appreciate, interviews
conducted by law enforcement personnel typically were unclassified,
whereas interrogations conducted by military personnel were usually
classified.257 As a result, using the fruits of the former in a prosecution
was “much easier.”258 Even where the interrogation was conducted by
military personnel, moreover, advance coordination at least increased
the chances that interrogators would pursue lines of inquiry that actually
would be useful at trial, assuming classification concerns could be
overcome.259
2.
Finite Capacity
Limited capacity for processing cases constitutes a second major
obstacle. This problem is, to some extent, a manifestation of the slow
process of building out the institutional capacities of the Iraqi state. But
it also reflects the fact that “dozens of judges had been assassinated
since 2003,” leaving the system “overwhelmed” and suffering from a
“significant backlog of cases.”260 One observer noted that, as of August
254. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: “Judge Runs” (on file with the Virginia Journal of
International Law Association).
255. Id.
256. Id.
257. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Use of Civilian LEPs Following the
Transition to Warrant-Based Detention (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50, at
61.
258. Id.
259. Office of the Staff Judge Advocate, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, November 2007–February 2009: Involvement of Intelligence Personnel
in the Targeting/Warrant Process (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50, at 60.
260. Pregent, supra note 205, at 168.
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IRAQ AND THE MILITARY DETENTION DEBATE
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2008, “the courts were so slow that it would take three years to retire the
backlog of cases.”261
This is fundamentally a question of resources. Even with additional
judges and other personnel, however, the prospect of occasional
caseload spikes makes progress difficult. One such spike involves the
thousands of legacy detainees transferred from security internment into
the criminal process. Others result from the fact that the Iraqi Army
periodically floods the system with persons arrested in “widespread
‘roll-ups’” of neighborhoods.262 These operations are designed
primarily as a show of force and capacity,263 but investigative judges are
nonetheless obliged to review the resulting cases individually,
consuming their limited time and resources. One unit observed that this
was not an issue insofar as the Iraqi Army was concerned, as “the IA
views the interests of the judiciary as coming a distant second to its
own.”264
3.
Intimidation
A more substantial obstacle to the effective use of the Iraqi criminal
system involves the widespread intimidation of the judiciary and
witnesses. Several units emphasized this issue:
One of the biggest obstacles is fear by the judge due to a lack of
judicial security. The personal security details (PSDs) available
to judges were in short supply. For example, in the [brigade’s
area of operations], there were only approximately 80 PSD
personnel for 60 judges. Many of these PSDs were not armed
and/or trained, and they only provided protection during normal
work hours. Criminals kidnapped one judge at his house. There is
insufficient security of judges and no protection of witnesses or
attorneys involved in insurgency cases.265
Captain Chris Manglicmot, a Troop Commander in 7th Cavalry
Regiment in Baghdad for most of 2009, reports that IJs in his
experience were generally reluctant to issue warrants in security-related
cases, “due to the insurgents [sic] ability to intimidate the
261. Id. at 173.
262. Office of the Staff Judge Advocate, Asymmetric Warfare Group, After Action Report,
Operation Iraqi Freedom, November 2008–April 2009: Resistance of Units to Involvement in
Law Enforcement Functions During Stability Operations (Apr. 17, 2009), in TIP OF THE SPEAR,
supra note 50, at 171–72.
263. See id.
264. Id.
265. 2d Squadron, 1st Cavalry Regiment, After Action Report, Operation Iraqi Freedom,
January 2009–December 2009: Lack of Judicial Security (on file with the Virginia Journal of
International Law Association).
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[Vol. 51:549 population.”266 Others agreed. One observer noted that “Iraqi judges
were afraid of local insurgents and thugs,” and that this “had a clear
impact on pending cases, as there were numerous pending cases where
the judge released individuals for ‘lack of evidence’ when the judges
feared for their lives.”267 Another concluded that Iraqi judges “feared
the idea of overt U.S. visits to their courthouses,”268 while a different
unit speculated that variations in the interpretations of Iraqi law by local
judges may at times have stemmed from fear, “causing them to indicate
the existence of a limitation not necessarily imposed on them by
law.”269
Witnesses similarly suffer from intimidation. An Army Captain who
wished to remain anonymous made the point in colorful fashion in this
account drawn from his or her experience in 2009:
[T]o gain a warrant you needed eye witness testimony. First of
all, most people who witnessed a terrorist act were killed or are
too terrified to testify. If they did want to testify they had to
travel to Baghdad to see a judge. They also then had to produce 4
forms of identification (who has 4 forms of ID?). There was a
266. Interview with Chris Manglicmot, supra note 220.
267. 2d Heavy Brigade Combat Team, 1st Cavalry Division, After Action Report, Operation
Iraqi Freedom, December 2008–December 2009: Intimidation of Local Iraqi Judges (on file with
the Virginia Journal of International Law Association); see also 2d Squadron, 1st Cavalry
Regiment, supra note 265 (“Even the police were fearful — they typically gave very neutral and
vague answers when testifying in terrorism cases. . . . Fear leads to reluctance to prosecute
aggressively high profile cases. People often perceive this as evidence of corruption. However,
the BCT perceived this reluctance as related more to a lack of security than corruption. Although
the courts are open and functioning, serious crime will continue to go unpunished until judges and
attorneys feel secure in proceeding to conviction in these cases.”); 2d Squadron, 1st Cavalry
Regiment, After Action Report, Operation Iraqi Freedom, January 2009–December 2009: Need
for a Dedicated Prosecution Task Force (on file with Virginia Journal of International Law
Association) (asserting that some cases were dismissed because of “intimidation by local criminal
and insurgent elements”).
268. Director, Interagency Rule of Law Coordinating Center, After Action Report, Operation
Iraqi Freedom, June 2008–June 2009: Preparation of IJs Before Security Agreement
implementation (June 29, 2009), in TIP OF THE SPEAR, supra note 50, at 54; see also Asymmetric
Warfare Group, After Action Report, Operation Iraqi Freedom, November 2008–April 2009:
Obtaining Warrants from CCCI Judges (Apr. 17, 2009), in TIP OF THE SPEAR, supra note 50, at
59 (noting similar concerns). In fairness, it should be noted that some judges may be hostile to an
overt U.S. presence not because of concerns over their personal safety but instead out of fear that
they might appear to be a “puppet” of the United States. See Office of the Staff Judge Advocate,
4th Infantry Division, After Action Report, Operation Iraqi Freedom, November 2007–February
2009: Presence of Soldiers in Courthouses (Apr. 30, 2009), in TIP OF THE SPEAR, supra note 50,
at 137; 3d Armored Cavalry Regiment, Regimental Judge Advocate, After Action Report,
Operation Iraqi Freedom, November 2007–January 2009: U.S. Army Presence in Courtrooms
(Apr. 22, 2009), in TIP OF THE SPEAR, supra note 50, at 136.
269. Individual Augmentee, Office of the Staff Judge Advocate, Multi-National Force–Iraq,
After Action Report, October 2008–December 2008: Differing Interpretations of Iraqi Law (Feb.
9, 2009), in TIP OF THE SPEAR, supra note 50, at 131.
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IRAQ AND THE MILITARY DETENTION DEBATE
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large fear that after they testified their name would be released
and then they would be killed, especially if they were testifying
against a Shia person.270
The judicial process is, of course, not the only aspect of governance
in Iraq to suffer from the effects of intimidation, and the problem is
unlikely to be brought fully under control without substantial success in
suppressing the insurgency on the whole. In the interim, an increase in
the resources made available for the personal security of judicial
personnel would help to a degree. As for witnesses, one unit reported an
experiment with “secret witness” procedures meant to deal with such
concerns. Under this protocol, a fearful witness could “wear a mask or
disguise in entering the room” to testify before an investigative judge,
“but must show his or her face to the IJ” and produce the requisite
identification. The judge then assigns a number to the witness’s
statement and inputs both the name and number into a “secret witness
book.” Unfortunately, it is not clear whether trial panels in Iraq are
willing to credit such statements, even if the investigative judge is
willing to premise an arrest warrant or detention order on them.271
4.
Bias Against Americans
A fourth major obstacle involves the possibility of actual hostility
among some judges to the Americans themselves. It seems likely that
any such bias will be idiosyncratic rather than systematic. Where it
exists, however, there is not a great deal that U.S. forces may do about it
short of attempting to channel prosecutions toward other decision
makers.
There is, in any event, some evidence that such bias exists. One
anonymous servicemember who served both during the Security
Agreement phase and during an earlier phase noticed that by 2009
“sworn statements from Americans were useless and the Iraqi
Judges . . . would not accept them,” whereas U.S. witnesses previously
had not posed any particular issue.272 Another unit reported a case in
which “the judicial investigator refused to interview a U.S. NCO who
witnessed and chased down a grenade thrower because the NCO was
not the ‘victim.’”273 That same unit asserted that “[a]t trial, some judges
270. E-mail from Anonymous I, supra note 75.
271. Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom, November
2008–April 2009: Iraqi Witness-Handling Procedures (Apr. 17, 2009), in TIP OF THE SPEAR,
supra note 50, at 58.
272. E-mail from Anonymous I, supra note 75.
273. 2d Squadron, 1st Cavalry Regiment, After Action Report, Operation Iraqi Freedom,
January 2009–December 2009: Impediments to Getting Convictions in Iraqi Courts (on file with
the Virginia Journal of International Law Association).
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 used any factual variances as an excuse to dismiss a case, and the Iraqi
prosecutors commonly pointed out evidentiary flaws in cases and
argued for dismissal,”274 that “judges seemed to give more weight to
Iraqi testimony (even if from the friends and family of the accused
insurgent) than to testimony by U.S. personnel,”275 and that an Iraqi
police chief told his Police Transition Team mentor that “no matter how
much you try, you will never get a conviction in this court.”276
5.
Forensic Evidence
Another potential obstacle to effective prosecution involves the
receptivity of Iraqi judges to forensic evidence — that is, fingerprint,
explosive residue, DNA testing, and other technical forms of evidence
produced by laboratories and typically introduced into evidence on the
strength of an expert report. This issue arises repeatedly in the After
Action Reports, though some dispute its significance.
For some, the forensic evidence issue may be subsumed in the larger
question of whether the Iraqi system puts too much weight on
eyewitness testimony. As one unit observed, IJs simply “would not
issue warrants without eye witness testimony,”277 and thus a case could
not be made on forensic grounds alone. But, for most observers, the
forensic evidence objection is not just a complaint about the inability to
make out a case solely on forensic grounds.
Some units report that courts are skeptical, if not downright hostile,
to considering forensic evidence in general, and most especially when it
is the product of an American rather than an Iraqi laboratory. One
brigade commented that, in many instances:
[It] had good evidence of a crime against U.S. forces, but had
problems getting that evidence into the case file. . . . [J]udges had
little understanding and hence accorded little weight to expert
testimony and forensic evidence. The report generated through
the application of technology to analyze physical evidence is not
necessarily admissible.278
Another brigade suggested that the problem may have had more to do
with the U.S. sponsorship of such evidence, implying that the same
274. Id.
275. Id.
276. Id.
277. E-mail from Anonymous I, supra note 75.
278. 2d Squadron, 1st Cavalry Regiment, After Action Report, Operation Iraqi Freedom,
January 2009–December 2009: Evidence Transfer to the Iraqis (on file with the Virginia Journal
of International Law Association); see also 2d Squadron, 1st Cavalry Regiment, supra note 265
(contending that Iraqi judges were “not accustomed to processing cases built upon highly
technical and forensic evidence”).
2011]
IRAQ AND THE MILITARY DETENTION DEBATE
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evidence from an Iraqi source might fare better: “[L]ocal courts
sometimes are resistant to the admission of evidence generated by U.S.
labs and time lags further complicate the issue. Iraqi crime lab capacity
needs substantial improvement to move the society away from an
evidentiary system nearly entirely based on testimonial evidence.”279
Consistent with that view, another unit explains that it “open[ed] the
Joint Expeditionary Forensics Facility (JEFF) lab to [Iraqi officials] so
they could understand and use the JEFF’s forensics capabilities in the
Iraqi court system,” and that, as a result, the “Chief Judge of Iraq
granted permission . . . to admit evidence from the JEFF lab into the
Salah ad Din courts . . . [so long as there was] a trained Iraqi
investigator to work at the JEFF lab to certify evidence.”280
Not everyone agrees that the forensics issue is a genuine problem.
Some suggested that the problem, if ever it was one, is decreasing over
time. In that vein, one unit noted that “by the end of its deployment, [it]
began seeing local Iraqi judges and law enforcement use forensic
evidence in the prosecution of cases.”281 And another commented that
“[m]ore and more judges are willing to rely on forensic evidence, with
increased enthusiasm observed even during the period from January to
March 2009.”282
Others questioned whether there ever truly was a forensics issue. One
observer specifically cautions that the forensics issue may be a mere
“urban legend[],”283 while another asserts that “the rumor that Iraqi
judges distrust forensic evidence . . . is false. In truth, Iraqi judges have
no problems with forensic evidence so long as the individual who
performed the techniques testifies before them and explains the forensic
process employed,” as opposed to presenting the judge with “reams of
paper” attempting to explain the process.284 Still another unit concluded
279. 2d Squadron, 1st Cavalry Regiment, After Action Report, Operation Iraqi Freedom,
January 2009–December 2009: Obtaining Warrants (on file with the Virginia Journal of
International Law Association).
280. 3d Brigade, 25th Infantry Division, After Action Report, Operation Iraqi Freedom,
October 2008–October 2009: Introducing New Evidence Collection Techniques to the Iraqi
Justice System (on file with the Virginia Journal of International Law Association).
281. Regimental Combat Team 8, After Action Report, Operation Iraqi Freedom, January
2009–October 2010: Forensic Evidence Training (on file with the Virginia Journal of
International Law Association).
282. Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom, November
2008–April 2009: Use of Forensic Evidence by Judges (Apr. 17, 2009), in TIP OF THE SPEAR,
supra note 50, at 147.
283. Pregent, supra note 205, at 176.
284. Brigade Judge Advocate, 2d Brigade Combat Team, 101st Airborne Division (Air
Assault), After Action Report, Operation Iraqi Freedom, October 2007–November 2008:
Warrant-based Detention Pilot Program (Jan. 13, 2009), in TIP OF THE SPEAR, supra note 50, at
55–56.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 that the issue depends upon the particular judge and that the CCCI
judges were more likely to be receptive than local judges.285
In any event, it should help that indigenous Iraqi forensic capacities
are expanding. In May 2010, Iraq opened its National Training Center, a
vehicle for improving the capacities of National Information and
Investigative Agency personnel (Iraq’s FBI, in effect).286 The National
Training Center “triples” the National Information and Investigative
Agency’s training capacity with respect to topics ranging from
document exploitation to intelligence analysis.287 If nothing else, this
new training should increase the number of cases in which forensic
evidence is supported by Iraqi rather than American expertise, thus
addressing the possibility that any hostility to forensics that there may
be is actually a proxy for hostility to or distrust of Americans.
6.
Limited Receptivity to Out of Court Statements
A final obstacle to consider involves the receptivity of Iraqi judges to
confessions that are not made live before an Iraqi judge. In the Iraqi
system, there is no formal rule against consideration of out-of-court
confessions in particular, but in practice investigative judges are free to
give as little or as much weight as they please to inculpatory statements
made to an interrogator. As one unit explained, “[a]n IJ may use the
information provided in response to questioning, but it does not carry
the same weight as a statement made to an IJ. . . . [I]ntelligence
personnel must be aware an admission made to them may not be given
significant weight in a court proceeding.”288
This problem can be remedied to some extent, of course, by
arranging for the investigative judge to question a detainee directly. But
would this create tension with the distinct interest in gathering
intelligence from the individual, particularly tactically relevant (and
hence time-sensitive) intelligence? Interestingly, one brigade reported
285. See Office of the Staff Judge Advocate, 10th Mountain Divison (Light Infantry), After
Action Report, Operation Iraqi Freedom, May 2008–May 2009: Warrants Based on Biometric or
Forensic Evidence (June 25, 2009), in TIP OF THE SPEAR, supra note 50, at 62 (“The division
went exclusively to Iraqi judges at the CCCI to obtain warrants based on biometric or forensic
evidence . . . . The judges at CCCI understood this evidence better than local judges did.”). The
AAR recommended training provincial judges on biometric and forensic evidence, indicating that
the problem was one of knowledge and comfort level, rather than prejudice towards forensic
evidence. Id.
286. Press Release, United States Forces–Iraq Public Affairs Office, National Training Center
Opens in Baghdad (May 14, 2010), http://tinyurl.com/236xoue.
287. Id.
288. Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom, November
2008–April 2009: Interrogation of Witnesses and Suspects by U.S. Forces (Apr. 17, 2009), in TIP
OF THE SPEAR, supra note 50, at 56.
2011]
IRAQ AND THE MILITARY DETENTION DEBATE
621
that this approach actually opened up new opportunities for collecting
intelligence:
[In early 2009, one of its units] had to take a seriously injured
insurgent to . . . Camp Cropper . . . . Although Camp Cropper
accepted the individual for medical treatment, accepting [him]
for detention purposes required a detention order from an IJ, as
well as a letter from a [competent Iraqi authority] requesting U.S.
forces to detain the individual in a U.S. facility. In obtaining the
detention order (which later involved bringing the IJ to the Camp
Cropper hospital to speak with the detainee), the unit learned the
information the IJ obtains from his interrogation of the detainee
becomes evidence, whereas sworn statements from Soldiers are
not acceptable evidence in the Iraqi system. The IJ allowed U.S.
personnel to observe interrogations and use the information.289
After this experience, the brigade came to appreciate that:
[T]he sooner the unit could get a detainee in front of the judge,
the more the evidence provided by the detainee in his confession
to the judge was usable as actionable intelligence for future
targeting. This process allowed the unit, in conjunction with
[ISF], to bring down an RKG3 (anti-tank grenade) network.
Furthermore, the success of this process got battalion
commanders to buy in to the concept of “prosecution-based
targeting.”290
This solution will not always be available; no doubt there are many
instances in which an individual has said or will say something to an
interrogator that he or she will not repeat in the setting of an interview
with an investigating judge (though how this reflects on the credibility
of such statements is an interesting question). Where such coordination
seems appropriate, however, PTFs and other such institutionalized
venues for cooperation and advance planning will prove useful.
7.
Iraqi Forces in the Lead at the Point of Capture
The final obstacle to address may be the least obvious one. Until this
point, the narrative has suggested that soldiers at the point of capture
have become increasingly willing and able to take steps to gather and
preserve evidence over time that would facilitate prosecution. Given
that the Security Agreement formally forecloses the security internment
289. 2d Heavy Brigade Combat Team, 1st Infantry Division, After Action Report, Operation
Iraqi Freedom, October 2008–June 2009: Development of Evidence and Actionable Intelligence
Using IJ Interrogations (on file with the Virginia Journal of International Law Association).
290. Id.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 alternative, one might expect this evidence-friendly trend to accelerate
from 2009 onward.291 And it seems to have done just that, insofar as
U.S. forces are concerned. This is increasingly less relevant, however,
as U.S. forces shift from the lead to a supporting role in the field — to
the potential detriment of cases in the Iraqi criminal justice system.
Insofar as U.S. forces are concerned, it does seem that the Security
Agreement has entrenched existing, evidence-oriented trends. Colonel
Renn Gade observes that strategic circumstances obliged the military to
confront the need to integrate prosecution support into operations in Iraq
as early as 2005–2006, including specifically the need to improve the
capacity of soldiers in the field to take steps that would support
prosecution down the road.292 No one, then or now, wants to turn
soldiers “into cops,” he emphasizes, but at the same time the dictates of
strategy must inform tactics.293 In a counterinsurgency environment, this
entails improving the capacity of soldiers to perform tasks such as
obtaining witness statements, securing “crime scenes,” at least to an
elementary degree, and handling evidence appropriately.294
It did take some time for the Army “as a whole to come fully to
grips” with this consequence of the changing climate in Iraq; for
example, the Special Forces community was particularly reluctant, even
hostile, in some early instances.295 They quickly adapted, however,
upon realizing that this approach furthered the goals of the
counterinsurgency strategy and involved methods that not only
supported the prosecution process but also turned out to be very useful
for purposes of gathering intelligence.296 The formal change wrought by
the Security Agreement, on this view, simply entrenched developments
in terms of training and practice that were already well underway.
All that said, the Security Agreement and associated policies
simultaneously had the effect of making the field practices of the U.S.
military less important than those of the Iraqi military. As a result,
evidence-oriented practices at the point of capture may actually have
degraded to some extent in the most recent period.297
291. See supra Part IV.A for a discussion of the legal implications of the Security Agreement
for detention policy.
292. Telephone Interview with W. Renn Gade, supra note 34.
293. Id.
294. Id.
295. Id.
296. Id.
297. It also appears to have reduced the haul of intelligence from captured persons. See Office
of the Staff Judge Advocate,10th Mountain Div. (Light Infantry), After Action Report, Operation
Iraqi Freedom, May 2008–May 2009: Decreased Intelligence (June 25, 2009), in TIP OF THE
SPEAR, supra note 50, at 96. But see Office of the Staff Judge Advocate, XVIII Airborne Corps,
After Action Report, Operation Iraqi Freedom, February 2008–April 2009: Effect of Warrantbased Detentions on the Quality of Intelligence Obtained (June 11, 2009), in TIP OF THE SPEAR,
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IRAQ AND THE MILITARY DETENTION DEBATE
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U.S. forces now go into the field in coordination with Iraqi forces,
and typically only in a supporting role. As a result, it frequently is the
case that Iraqi, rather than United States, forces are the ones in the
position to do the initial work involved in evidence collection and
preservation. As a general proposition, this does not bode well for the
quality of that process. An Army Captain, who wished to remain
anonymous, reported that, during 2009, “all the arrest[s] were done by
ISF,” and that although efforts at crime scene preservation were made,
“the [ISF’s] ability to manage a scene was very lacking.”298 Another
unit reported that it gave a three-day class concerning detainee
operations for an Iraqi Army unit, including a “focus . . . on forensics
and sworn statements.”299 The Iraqis indicated “they had never had this
kind of training before.”300 The problem extends to Iraqi police as well,
with one AAR indicating that Iraqi courts “regularly dismissed many
legitimate cases because of deficient investigative work” by Iraqi police
units.301
The net result may be a decrease in the quality of evidence collection
and preservation at the point of capture — at least with respect to
forensic evidence302 — notwithstanding increasing acceptance of and
interest in such police-style activity among U.S. military personnel.
Then again, a pair of distinct obstacles discussed above tends to
undermine the significance of this irony. First, as we have seen, there is
some reason to believe that Iraqi courts are hostile to forensic
evidence.303 Second, if courts in Iraq are indeed growing more hostile to
Americans as witnesses, then having Iraqi forces take the lead in the
field may provide an offsetting benefit insofar as it increases the range
of circumstances in which witness testimony might come from Iraqi
personnel.
supra note 50, at 96 (asserting that there were “no problems” and “no complaints”).
298. E-mail from Anonymous I, supra note 75.
299. Brigade Judge Advocate, 3d Brigade Combat Team, 101st Airborne Division (Air
Assault), After Action Report, Operation Iraqi Freedom, September 2007–November 2008:
Training the Iraqis on ‘Detention’ Skills (Jan. 14, 2009), in TIP OF THE SPEAR, supra note 50, at
25.
300. Id.; see also Asymmetric Warfare Group, After Action Report, Operation Iraqi Freedom,
November 2008–April 2009: Development of ISF Law Enforcement Skills (Apr. 17, 2009), in
TIP OF THE SPEAR, supra note 50, at 18 (noting relative lack of prior training in site exploitation).
301. Office of the Staff Judge Advocate, 10th Mountain Division (Light Infantry), After
Action Report, Operation Iraqi Freedom, May 2008–May 2009: Need to Address Basic Needs of
Iraqi Police (IP) (June 25, 2009), in TIP OF THE SPEAR, supra note 50, at 144.
302. How this development might impact the collection of witness statements is an interesting
question. Iraqi personnel may be less interested in collecting such statements and less disciplined
when it comes to ensuring that witnesses address relevant points. On the other hand, they seem
likely to be better able to induce cooperation, at least in the absence of sectarian tensions (in
which case the opposite presumably would be true).
303. See supra Part IV.C.5.
624
D.
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 The Persistence of De Facto Security Internment
In light of these obstacles, and perhaps others, there are some
individuals who may pose a threat to Iraq’s security who are not likely
to be prosecuted successfully. Such individuals could have been held
without charge while security internment persisted, but, with the
apparent formal demise of that alternative in the Security Agreement,
what options remain? As it turns out, detention without charge — or at
least without trial — does remain an option in actual practice.
1.
Rump Security Internment in U.S. Custody
Approximately 14,500 detainees were held in U.S. military custody
as security internees at the end of 2008.304 The Security Agreement
called for the United States to provide available information about them
to the Government of Iraq, and then by an unspecified date to “turn over
custody of such wanted detainees to Iraqi authorities pursuant to a valid
Iraqi arrest warrant” while “releas[ing] all the remaining detainees in a
safe and orderly manner, unless otherwise requested by the Government
of Iraq and in accordance with Article 4 of this Agreement [permitting
U.S. forces to continue to engage in combat operations, subject to
coordination with and permission from the Government of Iraq]”.305
The key point to appreciate in that language is the lack of a date
before which the last transfer must occur, along with the implication
that the Government of Iraq may request that the United States continue
custody of an internee, at least where there is some connection with the
continuing role of the United States in combat operations. Taken
together, these provide a window for security internment in U.S.
military custody to continue more than a year and a half after the
Security Agreement came into force: The United States is under no
obligation to complete the transfer process before a particular date, and
in any event, it can continue custody if the Government of Iraq so
requests (though precisely what it means to continue custody “in
accordance with Article 4”306 presents some interpretive difficulties).
For most of the 14,500 individuals held in security internment at the
outset of 2009, this prospect mattered little. After a laborious process of
screening, case-building, and investigation into the prospects for release
into the community, the overwhelming majority of them have either
304. See Press Release, Department of Defense Multi-National Force–Iraq Joint Task Force
134, Coalition Detainee Population Drops to About 14,500 (Feb. 16, 2009),
http://tinyurl.com/268363j (describing the release rate of “50 detainees a day” since the beginning
of February 2009).
305. Security Agreement, supra note 200, art. 22, para. 4.
306. Id. art. 22, para. 1.
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IRAQ AND THE MILITARY DETENTION DEBATE
625
been transferred to Iraqi custody for prosecution or else released.307 The
basic idea was to focus first on “releasing the lower threat individuals
earlier in the year while gradually building towards the release of the
higher threat individuals” and also to spread releases temporally and
geographically so as not to overwhelm the capacity of Iraqi society to
reintegrate them and thereby spur a return to insurgent activities.308
Among other things, this provided time for some units to obtain
“guarantor letters” from local leaders, who agreed in writing to take
responsibility for the behavior of particular individuals.309
This process was not quick, but it made steady progress. Tranche
after tranche were either transferred to Iraqi custody for prosecution or
released. Along the way, each of the TIFs eventually was handed over
to Iraqi control, with the final facility — Camp Cropper — transferred
in July 2010.310 When the dust settled, however, not every person had
been transferred or released. In the end, the United States retained
custody of approximately 200 individuals — primarily individuals
associated with al-Qa’ida — pursuant to the window left open by the
307. See Multi-National Force–Iraq Chief Intelligence Law, After Action Report, Operation
Iraqi Freedom, June 2008–May 2009: Intelligence Law Attorney’s Role in Detention Operations
(on file with the Virginia Journal of International Law Association) (noting the role of attorneys
in conducting threat assessments by ranking the detainees); Tim Arango, Transfer of Prison in
Iraq Marks Another Milestone, N.Y. TIMES, July 15, 2010, at A10 (noting the transfer of the last
U.S.-controlled detention facility in Iraq and the continued U.S.-controlled detention of just 200
individuals). The Multi-National Force–Iraq was the umbrella command for U.S. and most allied
forces operating in Iraq from May 2004 until January 2010. Interestingly, as an insight into the
impact of perceptions of law in the field, the rank-ordering project apparently drew objections
from “staff personnel from other agencies” who “had concerns about setting up these boards
because of the potential of involvement in Guantánamo-like litigation.” Multi-National Force–
Iraq Chief Intelligence Law, supra.
308. 8th Regimental Combat Team, After Action Report, Operation Iraqi Freedom, January
2009–October 2009: Handling Mass Detainee Releases (on file with the Virginia Journal of
International Law Association); see also Office of the Staff Judge Advocate, I Marine
Expeditionary Force (Forward), After Action Report, Operation Iraqi Freedom, February 2008–
February 2009: Importance of Coordination with Provincial Leadership for Detainee Releases
(Feb. 19, 2009), in TIP OF THE SPEAR, supra note 50, at 18 (noting the adjustment of release rates
to match Iraqi capacity for reintegration). Captain Marty Evans (USN), who served as Task Force
134’s Legal Advisor subsequent to Brian Bill, states that the United States and the Government of
Iraq agreed that the United States would stagger releases so as to save the most problematic
individuals until the end of the process, but also that, in the end, “all” security internees held by
the United States had to be released no matter what. See Telephone Interview with Marty Evans,
Captain, U.S. Navy, Task Force 134 (Apr. 26, 2010).
309. See Office of the Staff Judge Advocate, I Marine Expeditionary Force (Forward), After
Action Report, Operation Iraqi Freedom, February 2008–February 2009: Incorporating Local
Iraqi Leadership into the “Guarantor” Program (Feb. 19, 2009), in TIP OF THE SPEAR, supra note
50, at 48; see also 2d Brigade Combat Team, 4th Infantry Division, After Action Report,
Operation Iraqi Freedom, September 2008–August 2009: Detainee Release Committees (on file
with the Virginia Journal of International Law Association) (“[Use of release committees]
ensured local government officials were prepared to deal with released detainees.”).
310. See Arango, supra note 307.
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VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 51:549 Security Agreement.311 These individuals appear likely to stay in U.S.
custody — within a special section of the former Camp Cropper312 —
until the American withdrawal.313 According to one report, many of
these holdover detainees “are considered among the most dangerous
captives from al-Qa’ida in Iraq and other insurgent groups.”314
Security internment, on this view, is significantly reduced in Iraq, but
it is not gone by any means — even though the Geneva Convention
provisions and UN Security Council resolutions that once provided a
clear and crisp legal justification for the practice have long since
dropped away. If challenged in a manner that required a response, the
United States presumably would argue that Iraqi domestic law justifies
this arrangement via the Security Agreement or otherwise; that the law
of armed conflict provides authority for it as a customary matter; or
perhaps both. But, even in the absence of an effective challenge, it
would be a mistake to assume that this arrangement provides more than
a stopgap solution to the problem posed by this batch of presumably
dangerous, yet hard to prosecute, individuals.
The U.S. military presence in Iraq continues to shrink, and the bulk
of the remaining force withdrew in August 2010.315 Some residual
number of troops will remain for some period to perform various
training and support functions, and it may well be that some number of
troops will also remain for jointly conducted counterterrorism
operations.316 And it is conceivable that the Government of Iraq will
continue to cooperate in the current arrangement with respect to the
rump security internee population. Sooner or later, however, it is
practically inevitable that changing diplomatic circumstances will bring
this cooperation to an end. At that point, continued detention of these
individuals cannot be assured.
311. Alexander, supra note 3 (discussing the conversion of Camp Cropper into Iraq’s “alKarkh” facility). Eight of the 200 are former members of Saddam Hussein’s regime and may be
handed over to the Iraqis once a new government has been formed. Leila Fadel, U.S. Hands Over
Tariq Aziz, Other Detainees to Custody of Iraqi Government, WASH. POST, July 14, 2010,
http://tinyurl.com/2c7n83b (citing General Ray Odierno).
312. See Ned Parker, U.S. Hands over Last Prison to Iraqi Control, L.A. TIMES, July 16,
2010, at A7 (reporting that the U.S. military will maintain control of a group of 200 detainees at a
wing within the former Camp Cropper).
313. Alexander, supra note 3; see also Fadel, supra note 311; Parker, supra note 312
(reporting that the United States will transfer control of any remaining detainees to full Iraqi
custody by the end of 2011).
314. Fadel, supra note 311.
315. See Michael R. Gordon & Elisabeth Bumiller, In Baghdad, U.S. Officials Take Note of
Milestone, N.Y. TIMES, Sept. 21, 2010, at A4.
316. See id.
2011]
2.
IRAQ AND THE MILITARY DETENTION DEBATE
627
De Facto Security Internment in Iraqi Custody
Notwithstanding the rump security internee population discussed
above, it is true that the Security Agreement framework prioritizes
reliance on the Iraqi criminal justice system. As it turns out, however,
elements of a de facto security internment regime are embedded within
that system.
Persons held in the Iraqi criminal justice system ostensibly have at
least had the benefit of some degree of process — specifically, the
evidentiary showing necessary to persuade an investigative judge to
issue an arrest warrant or detention order. They may not yet have had a
criminal trial, however, in which case their circumstances are less
distinct from security internment than one might suppose. Security
internees at least were ensured of twice-yearly hearings before the
MNFRC to reconsider their eligibility for detention. More significantly,
it is not clear that the warrant process imposes quite the same procedural
barrier to custody in the criminal justice system for Iraqi authorities as it
does for Americans. According to Colonel Richard Pregent, some 2000
of the 15,000 security internees still in U.S. custody in December 2008
already were in the process of Iraqi criminal prosecution, but prospects
for prosecuting many of the remaining 13,000 were slim because, in
many cases, the basis for detention involved classified information that
could not be shared.317 Nonetheless, he reports, “[t]o the surprise of
many, the [Government of Iraq] began to produce hundreds of warrants
for detainees [coalition forces] intended to release.”318 Colonel Pregent
concluded that “the [Government of Iraq] was not issuing warrants as
the result of an independent assessment of evidence in accordance with
Iraqi criminal and constitutional law. “The warrants were being massproduced by the [Government of Iraq] to effect the transfer of legacy
detainees from U.S. custody into Iraqi pre-trial detention.”319
Assuming that this is what occurred, does it really matter? Perhaps
not, assuming the trial process itself is not equally subject to the
government’s discretion. But, then again, even a robustly independent
trial process will not matter if the individual never receives a trial once
in custody. A study conducted by the LAOTF concerning the population
of Iraq’s biggest prison, the Rusaffa facility, showed that 20% of the
prison population there had no further action taken in their cases since
being subjected to a detention order. “Over 500 of these detainees,” the
investigation discovered, “had been in pre-trial confinement over a year
without any action taken on their case; over 290 of these had been in
317. See Pregent, supra note 205, at 163–64.
318. Id. at 164.
319. Id.
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[Vol. 51:549 pre-trial confinement for over two years with no significant action
taken.” Perhaps not surprisingly, given Iraq’s sectarian tensions, most of
these individuals were Sunnis. The result, Colonel Pregent concludes, is
a “de facto security detention” system.320 Another observer shared this
general perception, adding that some individuals were held in the Iraqi
system even “in the absence of detention orders or case files.”321
The magnitude of this situation is exceedingly difficult, if not
impossible, to ascertain. It may be that such cases were an unintended
byproduct of the capacity problem discussed above and should not be
taken as proof that the Iraqi government has quietly imparted to itself a
qualified version of the security internment power. Indeed, there is some
reason to believe that Iraqi authorities view this as a problem and are
attempting to fix it.322 But one cannot discount the possibility that this
arrangement is tolerated willingly, particularly where sectarian or
political differences are in issue.
V.
LESSONS LEARNED
The American experience with detention policy in Iraq yields a
number of lessons, some with immediate application to the ongoing
conflict in Afghanistan and others bearing on the larger detention policy
debate.
320. Id. at 165. See Director of the Interagency Rule of Law Coordinating Center, After
Action Report, Operation Iraqi Freedom, June 2008–June 2009: Strengthening Iraqi Capacity to
Improve CCCI Judicial Throughput (June 29, 2009), in TIP OF THE SPEAR, supra note 50, at 138,
for another account of what appears to be the same study depicting a still-darker picture. This
AAR indicates that a study found that 288 detainees in pre-trial confinement at Rusafa “had not
seen a judge for 2–3 years, hundreds more for 3–5 years, and dozens for more than five years.”
Id.
321. Individual Augmentee, Office of the Staff Judge Advocate (Rule of Law Section), MultiNational Force–Iraq, After Action Report, October 2008–December 2008: Pardon Provision of
Iraqi Anti-Terrorism Law (Feb. 9, 2009) in TIP OF THE SPEAR, supra note 50, at 131; see also
Brigade Judge Advocate, 4th Brigade Combat Team, 1st Cavalry Division, After Action Report,
Operation Iraqi Freedom, June 2008–June 2009: Assignment of Additional Judges to Relieve
Overcrowding in Iraqi Facilities (Aug. 14, 2009), in TIP OF THE SPEAR, supra note 50, at 149
(noting that some IJs “enforced the timelines, while others did not”); Office of the Staff Judge
Advocate, XVIII Airborne Corps, After Action Report, Operation Iraqi Freedom, February 2008–
April 2009: Disparity Between Legal Code and Practice (June 11, 2009), in TIP OF THE SPEAR,
supra note 50, at 131 (“[A]ccording to Iraqi law, a person jailed is supposed to see a judge within
twenty-four hours. In reality, though, it would take exponentially longer.”); Individual
Augmentee, Office of the Staff Judge Advocate (Rule of Law Section), Multi-National Force–
Iraq, After Action Report, October 2008–December 2008: Transfer from Overcrowded Facilities
(Feb. 9, 2009) in TIP OF THE SPEAR, supra note 50, at 148 (claiming that the “lack of detention
orders mean[t] that many detainees remain[ed] in overcrowded Ministry of Defense (MoD) or
Interior (MoI) facilities,” potentially “consign[ing] a detainee to detention on an indefinite
basis”).
322. See Director of the Interagency Rule of Law Coordinating Center, supra note 320, at
138.
2011]
A.
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629
The Impermanence of Military Detention Facilities Overseas
Perhaps the most obvious lesson — one with obvious implications
for U.S. operations in Afghanistan today — involves the impermanence
of U.S.-controlled military detention facilities located overseas.
At the outset of the war in Iraq, the United States did not actually
intend to stay in Iraq beyond the short-term and certainly did not
contemplate the operation of long-term detention facilities. The
deteriorating security situation ultimately obliged the United States to
reconsider its position, and, as a result, the United States held tens of
thousands of individuals in custody without criminal charge.
Throughout that period, detention operations in Iraq looked much like
those in Afghanistan today: a response to a situation in which the scale
of insurgent violence, combined with the weakness of the host nation’s
institutions, makes a criminal justice response implausible. In such a
context, the host nation understandably may welcome the use of
military detention in general, and the operation of the detention system
by U.S. forces in particular.
From a purely legal perspective, the resulting detention system may
appear to be indefinite in duration (to the pleasure of supporters and
chagrin of critics). But the American experience in Iraq reminds us that
the strategic and diplomatic circumstances that undergird that scenario
can — and eventually will — change, imposing a practical endpoint on
this detention model regardless of its legal legitimacy.
Many factors can bring about this change. The threat posed by the
insurgents may weaken. The host nation’s own security institutions may
grow more capable. The host nation’s calculation of the costs and
benefits of a U.S.-administered detention system in its territory — or of
the U.S. military presence more generally — may change. The United
States might itself conduct such a recalculation. Domestic politics in the
United States might force a change or an outright departure, irrespective
of the perceived utility of maintaining a detention system overseas.
Whatever the cause, any military detention system operated by the
United States in connection with an overseas deployment will inevitably
come to an end.
This process is nearly complete in Iraq, and it is now well underway
in Afghanistan.323 Alissa Rubin, the New York Times’ Bureau Chief for
323. See Richard A. Oppel, Jr. et al., Leaders Renew Vows of Support for Afghanistan, N.Y.
TIMES, July 20, 2010, at A10 (discussing Karzai Administration’s desire for transfer of security
responsibilities to Afghanistan by 2014); Alissa J. Rubin, U.S. Backs Trial for Four Detainees in
Afghanistan, N.Y. TIMES, July 18, 2010, at A6 (noting that the U.S. military “[f]or months . . .
[has] been working to make it possible for the Afghan government to hold trials at the Parwan site
[the main detention facility in Afghanistan] as part of an effort over time to transfer the center’s
detainees to Afghan control”).
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[Vol. 51:549 the Kabul Bureau and former Bureau Chief for the Baghdad Bureau,
explains:
Although military officials believe that the United States can
legally continue to detain Afghans under the law of war, they
have come to see long-term detention as creating problems,
including increased resentment from the local population that the
Americans are trying to win over. The goal by next summer is to
have more Afghan trials than American military administrative
hearings — an ambitious target given that so far this year there
has been just one trial, but nearly 1000 administrative
hearings.324
Brigadier General Mark Martins, deputy commander of the task force
responsible for detention operations in Afghanistan, underlined the
point in plain terms when he observed that the “most sustainable
detention is a criminal law enforcement-based detention in the Afghan
system.”325
None of this is to say that the use of detention without criminal
charge is or has been illegitimate in Iraq or Afghanistan. The point,
rather, is that even if this model is legally defensible, it would be foolish
to assume that it provides a long-term, let alone permanent, solution to
the need to incapacitate particularly dangerous persons. As discussed in
Part IV, the United States at this time confronts the question of what to
do in the future with the rump security internee population that it still
maintains in Iraq, given the prospects for withdrawal in the near future.
The same issue almost inevitably will arise in Afghanistan at some point
down the road. Indeed, officials already acknowledge the existence of a
“small group of enduring security threats” in U.S. custody there who
may or may not prove amenable to prosecution in the Afghan system.326
None of this would be particularly problematic in the context of a
conventional armed conflict in which the enemy’s fighters participate in
hostilities at the command of a government and hence can be presumed
in most instances not to pose a threat to the United States beyond the
period of U.S. deployment. Nor would this pose a substantial problem in
a counterinsurgency setting — at least from the perspective of the
United States — so long as the enemy’s fighters are concerned solely
with affairs in the host nation’s territory rather than with United States
in general.
324. Rubin, supra note 323.
325. Id.
326. Id. (indicating that officials are considering the prosecutability of these individuals on a
case-by-case basis).
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But, in the context of detainees involved in transnational terrorism
directed against the United States, the problem is a significant one. In
that setting, the most important lesson from the American experience in
Iraq is that military detention may be attractive on the front end because
of its procedural simplicity and superficially indefinite nature, but on
the back end it is problematic because the detention framework itself
will inevitably cease to be available. This suggests that policymakers
must bear in mind at all times the prospect that it may be necessary to
prosecute a person (whether in a military commission, a civilian U.S.
court, or in a host-nation court)327 in order to incapacitate them over the
long term, even if that prospect seems speculative or quite a long way
off.
One might respond by arguing that if the United States is obliged to
leave a theater while in custody of still-dangerous individuals whom it
is unwilling to set free, it can simply detain them elsewhere. But where?
Even if we set aside the question of whether removals from theater
would themselves be lawful — and even if we assume that there would
still be a legal justification for the underlying detention if the United
States ceased to be involved in combat in theater — at the moment there
is no location to which such a detainee realistically might be sent. We
are shutting down our detention operations in Iraq and eventually will
do the same in Afghanistan. We are not currently engaged in combat
operations involving detention facilities in other overseas locations. Our
allies are unlikely to let us set up a detention facility on their soil, given
the headaches experienced by those who did this in support of the U.S.
Central Intelligence Agency’s post-9/11 “black site” detention
operations.328 This leaves only the United States itself or Guantánamo,
both of which present familiar political obstacles.
Those obstacles could be overcome, depending on future
circumstances, but one cannot count on that. A prudent planner must
accordingly assume that there are no realistic alternatives for continued
military detention in U.S. custody — in which case the prospects for
keeping a particular person in custody for a longer period may depend
327. As between a prosecution by the host nation and one by the United States (whether
military or civilian), it is worth noting that host nation systems may be unreliable from a security
viewpoint. Consider that a quartet of al-Qa’ida in Iraq members escaped from the detention
facility formerly known as Camp Cropper approximately one week after the United States
transferred it to Iraqi control. See Qassim Abdul-Zahra & Tarek El-Tablawy, Iraqi Minister Says
4 al-Qaida Inmates Escape Jail, ASSOCIATED PRESS-AP WORLDSTREAM, Sept. 9, 2010,
http://abcnews.go.com/International/wireStory?id=11226154.
328. See generally Marcel Rosenbach and John Goetz, New Report Cites Proof of CIA Black
Sites: ‘Massive and Systematic Violations’ of Human Rights,” SPIEGEL ONLINE INTERNATIONAL,
June 8, 2007, http://tinyurl.com/4lfqfvw.
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[Vol. 51:549 on the willingness and capacity of either the host nation or the United
States to prosecute.
B.
Preserving and Building Military Capacity to Support
Prosecution
The U.S. military’s experience in Iraq demonstrates the difficulty of
supporting prosecutions in an overseas setting involving insurgency and
terrorism. It also demonstrates, however, that prosecution support is not
irreconcilable with military culture and practice.
Military training has changed to emphasize steps that units can take
in the field to collect and preserve evidence at the point of capture.
Service members have come to see this as valuable, both because it
facilitates an approach that better serves the ends of counterinsurgency
and because they recognize that good evidentiary procedures turn out to
be useful from the intelligence-gathering perspective. Units have
adapted their organizational structures to improve coordination
internally and in partnership with Iraqi government actors. These
developments provide a model that can be extended to comparable
contexts.
These innovations are not a silver-bullet solution. They do not ensure
that any particular person can be prosecuted successfully. Where the
endgame involves prosecution in a U.S. court (civilian or military), an
enhanced focus on planning for prosecution may introduce difficult
constitutional issues relating to the admissibility of statements obtained
while in custody. The robust procedural safeguards and evidentiary
rules applicable in that setting, combined with the inherent difficulty of
assembling proof beyond a reasonable doubt in an overseas
counterinsurgency or combat environment, also ensure that the
prosecution will not be easy. And prosecution in a host-nation court
presents its own obstacles, as the experience in Iraq has proven. Perhaps
most significantly, not all host nations will have the institutional
capacity and resources that Iraq possesses as of the summer of 2010 —
a problem that may be particularly acute with respect to the Government
of Afghanistan.
None of this, however, is a reason not to do what reasonably can be
done to maximize the efficacy of the prosecution option when it is in the
interests of the United States to do so. The American experience in Iraq
teaches that there are realistic steps involving training, procedures, and
organizational structure that can be institutionalized toward that end.
2011]
C.
IRAQ AND THE MILITARY DETENTION DEBATE
633
The Utility of the Security Internment Model and the
Likelihood of Convergence
All too often in our Guantánamo-focused national dialogue relating
to detention, we understate the array of available options relating to
detention policy. Most of us are familiar with the principle that
prisoners of war may be detained for the duration of hostilities, and also
with the U.S. government’s position that the same is true for enemy
fighters who do not qualify for prisoner-of-war status. The latter
position undergirds the ongoing use of military detention at
Guantánamo and in Afghanistan, and its legal merits have been the
focus on non-stop debate since late 2001. Yet, the U.S. military placed
very little weight on that argument in Iraq over the years, focusing
instead on the less familiar but also less contested security internment
model.
Relying first on the Fourth Geneva Convention, and then later
adopting the same framework by analogy via a series of UN Security
Council resolutions, the U.S. military has held approximately 100,000
individuals in custody without criminal charge in Iraq.329 It managed to
do so without stirring up anything like the debate that has plagued post9/11 detentions resting on other theories, even though the international
armed conflict and occupation phases in Iraq were quickly replaced by a
protracted period of counterinsurgency comparable to current
circumstances in Afghanistan. Policymakers should bear this in mind
going forward.
At the same time, policymakers should also appreciate the likelihood
that, over time, the “convergence” phenomenon will have an impact on
the procedural safeguards associated with military detention in any
unconventional setting involving non-state actors such as insurgents or
terrorists.330 The convergence thesis builds from the premise that neither
the traditional military detention model (characterized by weak
procedural safeguards and an assumption that there will be relatively
few false positives) nor the traditional criminal prosecution model
(characterized by strong procedural safeguards and an assumption that a
relatively high rate of false negatives is a reasonable price to pay) maps
onto the circumstances of insurgency and terrorism very well (where
false positives are relatively likely but false negatives come at a higher
cost than in the setting of ordinary crime).331 The convergence thesis
predicts that, if a state employs either model in such a setting, one can
expect corresponding changes in that model overtime. That is, one can
329. See Alexander, supra note 3.
330. See Chesney & Goldsmith, supra note 6, at 1081.
331. See id.
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[Vol. 51:549 expect the adoption of higher procedural safeguards in association with
military detention or procedural shortcuts in the prosecution system.332
The U.S. military’s experience with security internment in Iraq has
followed this pattern. Initially, this model was applied in its traditional,
highly discretionary form. Procedural safeguards increased over time,
however, at least in part out of concern that the discretionary model
simply produced too many false positives — to the detriment not only
of the detainees, but also of the larger counterinsurgency mission. This
pressure found expression in Iraq through the establishment of the
MNFRC system (with its 40% release rate) and then later in the outright
abandonment of the formal security internment system. We are seeing
much the same thing occurring today in Afghanistan, just as it
previously occurred in relation to Guantánamo. In the future,
policymakers should bear in mind the likelihood that, in similar
circumstances, this same progression will occur, and that strategic
advantage may be had by increasing procedural safeguards early on
rather than waiting to be compelled to act by a climate of accumulated
frustration.
CONCLUSION
The American experience in Iraq highlights the dynamic relationship
between law and strategic circumstance — a point we often miss in the
larger detention policy debate. Much of the current debate portrays the
law applicable to detention policy as an exogenous set of fixed rules.
The American experience in Iraq, however, has been a story of constant
adaptation in which changing perceptions of the strategic environment
induced both policy and legal change. This is most clear with respect to
the continuation of security internment for many years, and on vast
scale, beyond the end of the occupation phase. But we see it as well in
the convergence-induced modification to security internment practices
in the late mandate period, in the ground-up construction of an Iraqi
criminal prosecution capacity, and in the Security Agreement’s creation
of a system that is nominally focused on criminal prosecution but also
retains a capacity for lingering security internment. None of these steps
can be understood with reference to the pre-existing legal materials; in
each instance, the law was tailored and adjusted to prevailing
understandings of the security environment.
The point is not that the United States can simply change the law
whenever it finds it convenient to do so, nor that the law lacks any
constraining capacity in its own right. The point, rather, is that the law
applicable to detention policy is simultaneously both central to security
332. See id.
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IRAQ AND THE MILITARY DETENTION DEBATE
635
but not nearly as fixed as our national dialogue at times suggests. As
Philip Bobbitt reminds us, law and strategic circumstance exist in a
complex, dynamic relationship.333 In this model, changing
circumstances inevitably find expression in the law, yet fidelity to the
rule of law is a critical factor in preserving security. There is no paradox
in this, for fidelity to the rule of law does not require law to be static.
The American experience with military detention in Iraq, from this
point of view, is an extended case study of this fundamental point.
Efforts to understand that experience — or to understand the broader
detention policy debate — must build from this foundation.
At the time of this writing, the United States appears to be nearing
the end of its experience in Iraq. For good or ill, we have relinquished
our last detention facility, and, someday in the near future, the detention
policy cycle there will come to its endpoint. In the meantime, detention
policy in Afghanistan, not surprisingly, is following a very similar track.
Once more, the United States is striving to establish the host-nation’s
criminal prosecution track and planning to reduce or even eliminate our
direct role in detention operations as we hand over facilities to hostnation control. Eventually, we will be out of the detention business in
Afghanistan just as we are about to be out of it in Iraq. Whether we
retain the hard-earned lessons of Iraq beyond that point — and for that
matter, whether we can make use of them in the meantime, in the larger
detention policy debate — remains to be determined.
333. See generally PHILIP BOBBITT, TERROR AND CONSENT: THE WARS FOR THE TWENTYFIRST CENTURY (2008); PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE AND THE
COURSE OF HISTORY (2002).
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