Wicked Larceny of Natural Resources, Deliberate Diffusion of Chaos: the Only US Target in Iraq

In three previous articles entitled ‘The Neocolonial Fabrication of Iraq – A Country Without Justice’, ‘Post-Saddam Iraq: the Prevalence of Injustice and Inequity’ and ‘Obliterating Humanity, US / UK-occupation of Iraq is Worse than Saddam Hussein’s Tyranny’, I republished the preliminary parts (Introduction, Table of Contents, Summary, Recommendations, Methodology, Background and Legal Framework) of a Report recently released by the leading humanitarian NGO Human Rights Watch (The Quality of Justice - Failings of Iraq’s Central Criminal Court - December 14, 2008 - http://www.hrw.org/en/reports/2008/12/14/quality-justice-0), which makes state of the dramatic situation that prevails in the judiciary system of the neocolonial fabrication of post-war Iraq. The Report sheds light on an impossible situation ensued from the calamitous mismanagement of the country by the biased US administration.

This 42-page Report documents how thousands of defendants in Iraq wait months or even years before facing a judge and hearing charges against them in the Central Criminal Court (CCCI), and cannot pursue a meaningful defense or challenge evidence against them. A US-Iraq security agreement that takes effect at year's end will transfer detainees held by the US-led Multinational Force to Iraqi jurisdiction, adding to the court's cases.

In the present article, I republish some of the main chapters of the Report, namely Delays in Hearings, Lack of Evidence and Reliance on Secret Informants, and Access to and Quality of Defense; the three parts reveal the tragic situation to which Iraq was plunged because of the evilness and inhumanity of the Bush administration – those who promised to bring the Paradise of Earth, but delivered the worst version of Hell. With the forthcoming, last article, I will complete the republication of the enlightening HRW Report.

VI. Delays in Hearings
http://www.hrw.org/en/node/76891/section/7

The failure to provide judicial hearings within a reasonable period of time stood out among the procedural failings Human Rights Watch observed during its attendance at investigative hearings and from interviews with detainees referred for trial to the CCCI. A majority of detainees had been held for months, and in some cases years, before referral to a judge.

The delays are, in some measure, the result of the dramatic growth in the Iraqi detainee population during the implementation of the Baghdad Security Plan in 2007 (see Chapter IV, above). Over the course of the year, the investigative division of the Karkh branch of the court handled a total of 32,084 cases, referring 7,447 for trial and dismissing 17,820; of cases referred for trial, 2,875 were concluded during the year.[95] A staff of 10 trial judges, 25 investigative judges, and 15 judicial investigators is responsible for handling this caseload.[96]

The delays also reflect failures of procedure prior to handling at the CCCI. In certain instances, investigative judges dealt with those failures-including lack of counsel at previous investigative hearings, and allegations of coerced confession-by dismissing cases. In one set of hearings that Human Rights Watch attended, an investigative judge ordered the release of 11 detainees rounded up during mass arrests carried out by an Iraqi army unit in Mahmoudiyya and accused of belonging to the Jaysh al-Mahdi, the militia linked with the movement headed by Moqtada al-Sadr. These detainees, who testified they had been in custody for periods ranging from 30 days to five months, had never been referred to an investigative judge. Nor were arrest warrants, physical evidence, or summaries of testimony by informants included in their case files. None had had access to counsel.[97]

In a separate investigative hearing, a defendant detained by the Iraqi army in July 2007 and accused of membership in an Islamist group was released after he testified that he had received only a single investigative hearing, without counsel, after his arrest.[98]

In other instances, judges acknowledged grave procedural errors by starting the process anew, with further hearings and further prolonged detention. A defendant at the Rusafa branch of the court told Human Rights Watch he had been detained in January 2006 during a raid by Interior Ministry commandos and held since then in Baghdad's transfer prison. That defendant, who previously had an investigative hearing some months after his initial detention, without counsel, on charges of theft and murder, this time received a hearing with counsel present. The judge referred his case for further investigation.[99]

Notes

[95] Statistics provided by CCCI-Karkh to Human Rights Watch, May 15, 2008.

[96] Ibid.

[97] Human Rights Watch observation of investigative hearing, CCCI-Karkh, May 5, 2008.

[98] Human Rights Watch observation of investigative hearing, CCCI-Rusafa, May 11, 2008.

[99] Human Rights Watch observation of investigative hearing, CCCI-Rusafa, May 14, 2008.

VII. Lack of Evidence and Reliance on Secret Informants
http://www.hrw.org/en/node/76891/section/8

The investigative hearings and trials that Human Rights Watch observed relied almost exclusively on confessions and the summarized testimony of witnesses and informants. No physical evidence was introduced at any stage of any proceedings, including cases in which US judge advocate generals presented evidence against MNF detainees facing weapons charges. On one occasion, that evidence consisted in part of statements from US forces and photographs of the defendants with weapons alleged to be theirs. In another case, the charge sheet alleged the detainee had made bombs, though the attending JAG said that detaining forces had conducted no explosives residue test.[100]

The absence of physical evidence-other than photographs of weapons that JAGs alleged detainees had possessed when detained-in the investigative hearings that Human Rights Watch witnessed, and the corresponding reliance on the testimony of secret informants and confessions, suggests several consequences for the proceedings of the court. Most notably, the recourse to secret informants compounds the problem of lengthy delays in processing cases. Introducing the testimony of a secret informant presumes the possibility of summoning that informant in person by judicial order later to corroborate testimony if needed. In remarks on the use of secret informants in the court, UNAMI notes that informants frequently ignore a summons when issued, resulting in further extension of detention of the accused.[101]

Iraqi judicial authorities told Human Rights Watch that the testimony of secret informants is a principal source of evidence in the security-related cases at the core of the court's mandate-particularly in cases that originate in mass detentions associated with military operations. One CCCI investigative judge estimated secret informant testimony figures in 40 percent of all cases heard by the court.[102] Another senior judge acknowledged such testimony was open to abuse, but deemed it unavoidable under present security conditions:

Now because of the security situation, and the fear of revealing one's identity, there is greater reliance on the secret informant. It's not just fear of simple retribution, it's also the risk to extended families and so forth…. There is a certain amount of uneasiness about this subject, politically and because of the possibility that such testimonies are spurious … For instance, the army may be working in a hot area, and take testimonies relating to the presence of kidnappers. It then becomes a question of bringing the informant to the judge, and there may be problems of credibility … We have a lot of false informants presenting a lot of false testimony … If we depend on this evidence, yes, there are going to be victims but there will be fewer victims than if we disregarded the informants completely.[103]

During its monitoring of the court's proceedings, Human Rights Watch found that judges were willing to dismiss some cases that were based entirely on the testimony of secret informants. In a trial at the Rusafa branch of the court on May 11, 2008, a defendant faced charges, based on the testimony of secret informants, of planning sectarian attacks as the leader of an al Qaeda cell. The Iraqi army had detained the defendant in 2007 following an insurgent attack. He denied the charges and claimed to have no knowledge of people named as co-conspirators; the defendant as well as defense counsel and the prosecutor, noted that previous statements had been taken, presumably by detaining forces, without an investigative judge or counsel present. The prosecutor suggested dismissal, and defense counsel alluded to the existence of an exculpatory witness whose testimony had not been admitted at the investigative phase. The presiding judge acquitted the defendant on the grounds that no there was no evidence other than the testimony of secret informants.

Iraq's Higher Judicial Council said in November 2008 that judges had been instructed to dismiss cases in which informants did not respond to a summons and there was no other basis for continued detention.[104]

Notes

[100] Human Rights Watch observation of Investigative hearings, CCCI-Karkh, May 5, 2008.

[101] UNAMI Human Rights Report, 1 July-31 December 2007

[102] Human Rights Watch interview with CCCI judge (name withheld), May 11, 2008.

[103] Human Rights Watch interview with CCCI judge (name withheld), May 14, 2008.

[104] In response to queries from Human Rights Watch to Iraq's Higher Judicial Council about administrative measures to regulate the use of secret informants, a senior investigative judge replied as follows: "All those conducting investigations have been instructed that no one may be detained except on the basis of an arrest warrant issued by the court. This warrant is issued only after the secret informant appears before the judge, is sworn in and after the judge is convinced of the necessity of issuing the warrant. The difficulty has been overcome this way regarding new cases…As for old cases in which the secret informant's statement has been taken by an investigating officer, they have been dealt with by a mechanism that comprises giving the secret informant notice to appear before the competent judge. In the event the informant does not appear, and the suspect's statements are not sufficient for referral for prosecution and there is no evidence in the documentation, the competent judge issues an order to release the detainee and close the investigation." Human Rights Watch email communication with Higher Judicial Council, November 19, 2008.

VIII. Access to and Quality of Defense
http://www.hrw.org/en/node/76891/section/9

Over the course of dozens of investigative hearings and several trials, Human Rights Watch observed few instances of active, competent, and prepared defense. On a few occasions, no defense counsel was present during investigative hearings, which proceeded nonetheless. While either court-appointed or private counsel was available for the majority of defendants, the defense was in nearly all instances perfunctory at best. In a majority of investigative hearings that Human Rights Watch witnessed, court-appointed counsel did not speak or otherwise intervene.

In an investigative hearing at the Rusafa branch of the court on May 11, 2008, a police officer named Ammar Feisal faced charges of murder and assorted acts of terrorism allegedly carried out with al Qaeda members in Baghdad's Fahhama district. The charges, drawing in part on the testimony of a secret informant, described Feisal as a member of a cell that set up fake checkpoints in Fahhama in 2006 to carry out sectarian killings and kidnappings. Feisal, whom Iraqi security forces detained in March 2008, had privately retained counsel, but at his hearing he was represented by a court-appointed lawyer who only received the case file immediately before the hearing began.

After hearing the summary of the charges, most of them capital offenses, his court-appointed counsel requested permission from the investigative judge to be excused, citing the obligation to appear at another hearing. The judge refused the request, and counsel complied with the judge's order to stay, but did not speak at any time during the hearing. Following Feisal's account of the killing for which he faced the murder charge, the judge transferred that count to the investigative section of a local court with a request to allow Feisal to summon exculpatory witnesses (something that his court-appointed lawyer had not sought to do). The judge recommended Feisal's continued detention and a further investigative hearing on the terrorism-related charges.[105]

Human Rights Watch attended investigative hearings at the Karkh branch of the court in the cases of three men detained by Iraq's National Guard in Mahmoudiyya in November 2006. Two of the men were brothers facing a series of charges including terrorism, kidnapping, murder, and rape; the third, not related to the others, was detained along with them while riding in their vehicle. All told the court they had had prior investigative hearings in other venues without defense counsel, and were making their initial appearances at the CCCI. All alleged that detention officers abused them during detention and coerced their confessions.

One of the defendants in the case, Sattar Ali Muhammad al-Ubaidi, denied all of the charges and told the investigative judge that interrogators had tortured him, threatened him with death, and forced to him to place his fingerprint on the text of a confession while blindfolded. His brother, Kaiser Ali Muhammad Salim al-Ubaidi, showed the judge scars that he described as the result of abuse during detention by the National Guard. The third defendant, Bassem Muhammad Hussein, told the judge he too had been forced to fingerprint a confession while blindfolded and displayed scars on his foot that he claimed were the result of abuse while in custody of the National Guard. When Hussein referred to other scars that he claimed were the result of torture, the investigative judge told him not to display them. All of the detainees said they had no knowledge of any charges or evidence against them. The court-appointed lawyer present during the hearing asked no questions and made no attempt to question the validity of the statements forming the basis of prosecution.[106]

In a separate set of investigative hearings that Human Rights Watch attended at the same court on May 5, four men detained in Baghdad during a raid by US troops faced charges of illegal possession of weapons. The detainees claimed they were forced to pose for photographs with caches of weapons; those photographs were subsequently introduced as evidence. During the hearings, which a US military JAG and interpreter also attended, one detainee, Nassir Abdelamir Abbas, claimed he had been detained on the basis of confusion between his name and that of "Abu Nasir," an individual sought by MNF troops on the basis of intelligence reports. At that point in the hearing, the court-appointed counsel who had attended both hearings had left the room and did not return subsequently.[107]

In a May 11, 2008 trial hearing at the Rusafa branch of the court that Human Rights Watch attended, a defendant detained in Salahuddin province in 2005 faced charges relating to alleged attacks on Iraqi security forces. The court allowed an initial statement of the charges without defense counsel present, then halted the proceedings to summon a court-appointed lawyer who had no prior knowledge of the case. The defendant recounted being detained in Baiji on suspicion that the vehicle in which he was riding had been stolen; police subsequently told him the vehicle was thought to be connected to the attacks on security forces. During questioning immediately after his arrest, he said, police interrogators told him he was also a suspect in a murder case in the nearby city of Tikrit, and transferred him to the custody of police there. The defendant displayed scarring that he said was the result of torture during interrogations, and that he had agreed to endorse a confession with his fingerprint after one such interrogation session.

At the trial hearing the defendant denied all the charges. He said that he believed he had been detained due to similarity between his name and that of another man who had been arrested in connection with attacks on security forces but released after his family bribed local police. The defense in the trial consisted of repeating the prosecutor's request for dismissal on the grounds that there were no eyewitnesses or physical evidence, and that the confession had been coerced. The presiding judge cited the scarring that the defendant displayed as grounds for concluding that he had been tortured to elicit a confession, and the panel of judges acquitted him.[108]

In addition to the failures to challenge evidence or provide a defense, Human Rights Watch noted broader structural failings in access to counsel that effectively make vigorous defense unlikely. One privately-retained counsel told Human Rights Watch that he had some degree of access to clients in pretrial detention at certain Iraqi government facilities.[109] The overwhelming majority of defendants at the court have court-appointed lawyers with whom they have never met and who have no knowledge of the case prior to the investigative hearing. As a consequence, these defendants are ill-informed about the substance of charges and evidence they face, their rights within the investigative and trial processes, as well as about any appeal proceedings. Court-appointed counsel fulfills a minimum requirement, as outlined in Iraqi law, including the constitution, for representation, but offers little by way of substantive defense. One investigative judge, queried about the quality of representation, told Human Rights Watch, "Effectively and generally they are not fulfilling an active defense role."[110]

Lack of continuity in representation by court-appointed lawyers between the investigative and trial stages further degrades the quality of defense. In only two of the trials that Human Rights Watch observed did defendants have the same counsel that had represented them at the investigative stage. In one of those two cases, a privately retained lawyer had managed to have access to the accused while they were held in Baghdad's transfer prison (Tasfirat). In other trial hearings that Human Rights Watch observed, defense counsel read case files during or immediately before the trial commenced; their interjections, if they made any, echoed reservations that prosecutors themselves expressed about evidence.[111]

Effective lack of access to counsel affects also MNF detainees referred for prosecution before the CCCI. MNF officials told Human Rights Watch that they provide detainees two weeks' notice before their date of referral for prosecution, and afford detainees the opportunity to contact and retain counsel, but that defense lawyers do not seek to visit detainees. According to one legal advisor with the MNF,

While in the Temporary Internment Facility, detainees do have the ability to request a phone call to retain defense counsel. There have been concerns that the detainees are not using it for those purposes, and in the past when there had been 40-50 phone calls arranged we found that they were talking to their families, so we cut back.[112]

Court-appointed defense lawyers counter that they seldom receive notice of a hearing in advance and that, absent arrangements to guarantee their security in visiting an MNF detention facility, they have no access to detainees. They also cited difficulties in access to clients in the holding cells of the courts before investigative hearings. "The hearing is always the first meeting with the defendant," said one court-appointed lawyer, who added that his first reading of case files frequently occurred during the hearing itself.[113] The MNF advisor acknowledged that "coming to Camp Cropper is not easy," but claimed that "the defense counsel does not want to do it."[114] Maj. Gen. Douglas Stone, the head of detainee operations until June 2008, told Human Rights Watch, "Why is this a problem for defense counsel when hundreds of employees manage to come in every day?"[115] Defense counsel cited logistical difficulties and risks to their safety as main obstacles to meeting with clients in MNF facilities.

Whatever the weight of logistical and security considerations, the effect on the court's proceedings is clear. Defendants facing terrorism-related charges and other felonies, some of which carry a death sentence, enter investigative hearings and trials with little or no opportunity to contest or introduce evidence or witnesses.[116]

Notes

[105] Human Rights Watch observation of investigative hearing, CCCI-Rusafa, May 11, 2008.

[106] Human Rights Watch observation of Investigative hearing, CCCI-Karkh, May 6, 2008.

[107] Human Rights Watch observation of Investigative hearing, CCCI-Karkh, May 5, 2008.

[108] Human Rights Watch observation of trial hearing, CCCI-Rusafa, May 11, 2008.

[109] Human Rights Watch interview with defense lawyer (name withheld), CCCI-Rusafa, May 14, 2008.

[110] Human Rights Watch interview with investigative judge (name withheld), CCCI-Rusafa, May 11, 2008.

[111] Human Rights Watch observation of trial hearings, CCCI-Rusafa, May 11 and 14, 2008.

[112] Human Rights Watch interview with Capt. Brian Bill, May 12, 2008.

[113] Human Rights Watch interviews with defense lawyers (names withheld), CCCI-Karkh, May 5, 2008.

[114] Human Rights Watch interview with Capt. Brian Bill, May 12, 2008.

[115] Human Rights Watch interview with Maj. Gen. Douglas Stone, Baghdad, May 12, 2008.

[116] Figures from the trial section of CCCI-Karkh indicate that this branch of the court issued 175 death sentences in 2007.

Note
Picture: Justice in US-occupied Iraq is delivered in the streets - in a most inhuman way.