Following is an excerpt from Elizabeth de la Vega's new book, United States v. George W. Bush et al. (Seven Stories Press and Tomdispatch.com, 2006).
"Elizabeth de la Vega, appearing on behalf of the United States." That is a phrase I've uttered hundreds of times in twenty years as a federal prosecutor. I retired two years ago. So, obviously, I do not now speak for any U.S. Attorney's Office, nor do I represent the federal government. This should be apparent from the fact that I am proposing a hypothetical indictment of the President and his senior advisers -- not a smart move for any federal employee who wishes to remain employed. Lest anyone miss the import of this paragraph, let me emphasize that it is a disclaimer: I am writing as a private citizen.
Obviously, as a private citizen, I cannot simply draft and file an indictment. Nor can I convene a grand jury. Instead, in the following pages I intend to present a hypothetical indictment to a hypothetical grand jury. The defendants are President George W. Bush, Vice President Richard Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State Condoleezza Rice, and former Secretary of State Colin Powell. The crime is tricking the nation into war -- in legal terms, conspiracy to defraud the United States. And all of you are invited to join the grand jury.
We will meet for seven days. On day one, I'll present the indictment in the morning and in the afternoon I will explain the applicable law. On days two through seven, we'll have witness testimony, presented in transcript form, with exhibits.
As is the practice in most grand jury presentations, the evidence will be presented in summary form, by federal agents -- except that these agents are hypothetical. (Any relationship to actual federal agents, living or deceased, is purely coincidental.)
On day seven, when the testimony is complete, I'll leave the room to allow the grand jury to vote.
If the indictment and grand jury are hypothetical, the evidence is not. I've prepared for this case, just as I would have done for any other case in my years as a prosecutor, by reviewing all of the available relevant information. In this case, such information consists of witness accounts, the defendants' speeches, public remarks, White House press briefings, interviews, congressional testimony, official documents, all public intelligence reports, and various summaries of intelligence, such as in the reports of the Senate Select Committee on Intelligence and the 9/11 Commission. I've discarded any evidence, however compelling, that is uncorroborated.
Then, using a sophisticated system of documents piled on every surface in my dining room, I've organized and analyzed the reliable information chronologically, by topic, and by defendant. I've compared what the President and his advisers have said publicly to what they knew and said behind the scenes. Finally, I've presented the case through testimony that will, I hope, make sense and keep everybody awake.
After analyzing this evidence in light of the applicable law, I've determined that we already have more than enough information to allow a reasonable person to conclude that the President conducted a wide-ranging effort to deceive the American people and Congress into supporting a war against Iraq. In other words, in legal terms, there is probable cause to believe that Bush, Cheney, Rumsfeld, Rice, and Powell violated Title 18, United States Code, Section 371, which prohibits conspiracies to defraud the United States. Probable cause is the standard of proof required for a grand jury to return an indictment. Consequently, we have more than sufficient evidence to warrant indictment of the President and his advisers.
Do I expect someone to promptly indict the President and his aides? No. I am aware of the political impediments and constitutional issues relating to the indictment of a sitting president. Do those impediments make this merely an empty exercise? Absolutely not.
I believe this presentation adds a singular perspective to the debate about the President's use of prewar intelligence: that of an experienced federal prosecutor. Certainly, scholars and experts such as Barbara Olshansky, David Lindorff, Michael Ratner, John Dean, and Elizabeth Holtzman have written brilliantly about the legal grounds for impeachment that arise from the President's misrepresentations about the grounds for an unprovoked invasion of Iraq. But for most Americans, the debate about White House officials' responsibility for false preinvasion statements remains fixed on, and polarized around, the wrong question: Did the President and his team lie about the grounds for war? For many, the suggestion that the President lied is heresy, more shocking than a Baptist minister announcing during vespers that he's a cross-dresser. For many others -- indeed, now the majority of Americans -- that the President lied to get his war is a given, although no less shocking.
So my goals are threefold. First, I want to explain that under the law that governs charges of conspiracy to defraud, the legal question is not whether the President lied. The question is not whether the President subjectively believed there were weapons of mass destruction in Iraq. The legal question that must be answered is far more comprehensive: Did the President and his team defraud the country? After swearing to uphold the law of the land, did our highest government officials employ the universal techniques of fraudsters -- deliberate concealment, misrepresentations, false pretenses, half-truths -- to deceive Congress and the American people?
My second goal is to supplement the scholarly analyses already written, by moving beyond exposition, beyond theory, to the inside of the courtroom, or more precisely, the grand jury room. By presenting the President's conspiracy to defraud just as a prosecutor would present any fraud conspiracy, I hope to enable readers to consider the case in an uncharged atmosphere, applying criminal law to the evidence that they believe has been proved to the standard of probable cause, just as grand jurors would in any other case.
Why is it important to do this? Because whether the President and his senior officials conspired to defraud the United States about the grounds for war is, at least on one level, a legal question, but, without a shift in political will, there will never be any reasoned consideration of it as such. The President will not be held accountable for misrepresenting the prewar intelligence unless and until Congress conducts hearings similar to the Watergate hearings. As yet, however, we seem painfully incapable of reaching that point. We are like inept tennis partners, collectively letting the ball slip by in the no-man's-land between the service line and the baseline, or in this case, between the legal and the political.
Perhaps more important, however, is that, although the evidence of wrongdoing is overwhelming, the facts are so complicated -- far more so than those that prompted the Watergate hearings--that it's impossible to have a productive debate about them in the political sphere. Indeed, modern-day spin has vanquished substance so thoroughly that even the most well-grounded charge of deliberate deception is often considered more despicable than the deception itself.
One forum where that's not true is the courtroom. The court system is far from perfect, but there we at least expect that people will not substitute personal attacks for argument. We expect a reasoned exploration of fact versus fiction, honest mistake versus deliberate fraud. We also expect, and the law requires, that people hear all the evidence before deciding, thereby avoiding the rapid volley of sound bites that so regularly masquerades for debate on television. Hence, this hypothetical grand jury presentation: it is a vehicle to deliver a message.
My third goal is to send the message home -- to whomever will listen. And this is it:
The President has committed fraud.
It is a crime in the legal, not merely the colloquial, sense.
It is far worse than Enron.
It is not a victimless crime.
We cannot shrug our shoulders and walk away.
Why? Because We Are All Kitty Genovese's Neighbors
As an Assistant U. S. Attorney in Minneapolis, a member of the Organized Crime Strike Force in San Jose, and Chief of the San Jose Branch U.S. Attorney's Office, I prosecuted all manner of criminal cases. There were bank embezzlements, government frauds, violent takeover robberies, piloting a commercial passenger flight while under the influence -- the pilot had had twenty rum and (diet) Cokes and four hours' sleep before takeoff--and investment frauds, to name a few. Most were interesting; some downright loopy. One hapless fellow, for example, stole a truck filled with frozen turkeys and drove it across state lines to Wisconsin, thereby landing himself in federal prison rather than in county jail. For good measure, the following week -- before he'd been apprehended for the frozen-turkey heist -- he stole a truck filled with packaged frozen broccoli and drove it to Iowa.
Unquestionably, though, the most compelling cases were those that involved victims -- of violent crimes, robberies, or fraud. So I was not surprised to hear the lead Enron prosecutor's comment after the jury convicted former Enron CEOs Ken Lay and Jeffrey Skilling: "What inspired me," John Hueston said, "was just that, that I had spoken to so many employees, so many victims who lost their savings, people who pleaded with me and the other prosecutors to see justice done."
Thanks to Hueston and his team, the victims of the Enron fraud -- a $68 billion dollar crime that left 20,000 people without jobs, pensions, and life's savings -- have obtained some measure of justice. They will never be made whole, but at least the CEOs who orchestrated the fraud have been held accountable. In the case of the largest corporate fraud ever prosecuted in the United States, the system has worked, albeit imperfectly.
Thus far, however, in the case of the vastly broader and more devastating Iraq war fraud orchestrated by the CEO of the United States and his management team, the system has failed. And we are all victims of this fraud. George W. Bush exploited the vulnerability of an entire populace reeling from the September 11, 2001, attacks to manipulate them into supporting a war based on false pretenses. If the financial cost of the President's fraud is astronomical -- $340 billion in direct war costs alone as of August 2006 -- the human cost is incalculable, and far more profound: over 2,500 American soldiers killed and 19,000 wounded; possibly many more than 50,000 Iraqis killed; untold numbers of grieving Iraqi and American family members; hundreds of thousands of Iraqis homeless; and a million soldiers who have been sent to this war and will never be the same.
While we are all victims of the President's crime, we are also all bystanders. The crime is ongoing, happening right before our eyes, and we are all onlookers; we are all, in a sense, Kitty Genovese's neighbors.
As Malcolm Gladwell recounts in his book The Tipping Point, Kitty Genovese was viciously assaulted, stabbed three times, and finally killed, on the way to her Queens, New York, home one night in 1964. Thirty-eight neighbors heard or watched her ordeal, but no one called the police until the attack was essentially over. The murder was universally seen as a horrifying example of modern-day indifference to the plight of others. But, Gladwell explains, psychologists Bibb Latane and John Darley conducted experiments that led to a far different explanation: "When people are in a group ... responsibility for acting is diffused. They assume that someone else will make the call, or they assume that because no one else is acting, the apparent problem ... is not really a problem." Ironically, then, it was not that no one called to help Kitty Genovese "despite the fact that thirty-eight people heard her scream; it's that no one called because thirty-eight people heard her scream."
For over a year now, polls have shown that the majority of Americans believe President Bush deliberately misrepresented prewar intelligence. Executive branch officials who deliberately mislead Congress and the public intending to influence congressional action have committed a federal crime. That means that roughly 100 million Americans believe Bush has committed a crime, yet most, like Kitty Genovese's neighbors, are just passive bystanders--although not, I believe, due to indifference.
Indeed, many of us are just watching it happen because we feel powerless to stop it. Hundreds of thousands of people have, in effect, called 911, but not even Democrats in Congress have been willing to answer the phone. It is not that they don't have enough information; it is, our Democratic representatives say, because it is not good political strategy.
The proposition that it is not good political strategy to insist that government officials obey the law is highly debatable. More important, strategizing in the face of an ongoing crime is wrong. Ask any legislator whether he would strategize about possible political fallout before intervening to stop a crime that was occurring in front of his eyes and the response would be, "Of course not." But that is exactly what's happening right now.
So, consider this my 911 call. I'm calling on Democrats and Republicans to do the right thing. And I'm calling on everyone else to do whatever you can to convince Congress to do the right thing. I am not talking about bringing people to justice in the vengeful sense that President Bush employs. I am talking about effecting justice. I am talking, finally, about holding our highest government officials accountable for a complex and calculated program of false pretense, misleading statements, and material omissions -- a criminal betrayal of trust that is strikingly similar to, yet far worse than, the fraud committed by Enron's top officials.
Enron: Misleading Statements and Material Omissions
In July of 2002, President Bush stood before a snappy blue-and-white banner marked "Corporate Responsibility" and announced that he was opposed to fraud. With the enactment of the new Corporate Corruption Act, the President declared, there would "not be a different ethical standard for corporate America than the standard that applies to everyone else. [n]The honesty you expect in your small businesses, or in your workplace ... will be expected and enforced in every corporate suite in this country." CEOs would now have to personally vouch for the truth of their public statements.
Bush's speech announcing a higher standard for CEOs was itself misleading. Hearing it, one might easily conclude that if the President hadn't pushed for this new law, corporate officers would be legally entitled to lie, cheat, and steal. Not true, of course. The new law, also called the Sarbanes-Oxley Act, did not suddenly, for the first time in United States history, require corporate officials to be truthful, forthright, and fair with the public. Such obligations have been inherent in criminal fraud and other statutes for years.
Indeed, the Enron prosecution did not involve the Sarbanes-Oxley Act at all. The main charge was conspiracy to defraud: that is, conspiring to deceive investors by manipulating financial data, making false and misleading statements, and deliberately omitting important facts, in violation of Title 18, United States Code, Section 371.
Manipulation of data, false and misleading statements, and material omissions -- sound familiar?
At trial, former Enron CEOs Kenneth Lay and Jeffrey Skilling claimed they were not responsible for the deception because they had no idea what their underlings were doing. As the jury was instructed, however, anyone who makes representations intending that the public will rely on them, has an affirmative obligation to make sure that they are true and accurate. Representations made with reckless indifference to their truth are as false as outright lies.
After four months of complex testimony, the jury reached a simple conclusion: Lay and Skilling were responsible for what went on their company. As school principal Freddie Delgado put it: "I can't say that I don't know what my teachers were doing in the classroom. I am still responsible if a child gets lost."
In other words, the Enron jurors concluded that, legally, the desks of CEOs Lay and Skilling were the final repositories of the proverbial buck. Those jurors were average Americans -- office workers, educators, engineers, a nurse -- and they knew, even without the Sarbanes-Oxley Act, that CEOs should be held to the same standards of honesty and accountability that they would apply to themselves in their own lives. Faced with evidence that Lay and Skilling had repeatedly made public statements that were seriously undermined, if not flatly contradicted, by information and warnings they had received behind the scenes, the jury refused to allow them to avoid responsibility by blaming their subordinates.
Iraq: Misleading Statements and Material Omissions
The techniques of deception used by George W. Bush and his aides are identical to those used by Lay and Skilling. In his July 2002 speech announcing the signing of the Corporate Corruption Bill, the President said, "The only fair risks are [those] based on honest information." The President and his top advisers were acutely aware of the solemn risks posed by an invasion of Iraq, but instead of debating those risks honestly, they developed slogans, including the familiar "risks of inaction are greater than the risks of action" that simultaneously usurped and deflected counterarguments while providing no information whatsoever, honest or otherwise.
Such propaganda, cynical and craven as it is, might not qualify as criminal fraud, but the propaganda alone was insufficient to convince Congress and the American people to invest in the plan for war. To remedy this deficiency and close the deal, the President and his top aides made hundreds of representations, both general and specific, that were carefully crafted to manipulate public opinion. As we now know, many of those assertions were false and misleading. More important, we also now know that President Bush and his advisers had notice and direct knowledge that their representations were seriously undermined and in some key instances, disproved by information that was available to them. Consistently, the President and his aides knowingly conveyed false impressions, concealed important information, made deliberate misrepresentations, and professed certainty about facts that were speculative at best. Such is the definition of criminal fraud -- whether committed by the President of the United States or the CEO of a major corporation.
The only difference between the fraud committed by the Enron officers and the fraud committed by the President is that the latter was far more comprehensive and far more calculated. Even as President Bush stood center stage endorsing honesty that July four years ago, he and his company were setting the stage for another show. If the "only fair risks" speech was a perky Frank Capra clip, the White House's next production would be twenty-first-century H.G. Wells.
As of July 30, 2002, Bush had directed the creation of the White House Iraq Group, a public-relations operation whose sole purpose was to market the war. This team, collectively called WHIG, was co-chaired by the President's closest aides and long-term political consultants, Senior Adviser Karl Rove -- whom Bush has described as "the architect" of his 2004 reelection campaign -- and former Counselor to the President Karen Hughes.
By July 30, 2002, the White House Iraq Group had already begun fabricating an ominous scenario that blurred together the September 11 tragedy, mushroom clouds rising over American cities, and terrorists releasing strains of smallpox, interspersed with the shadowy face of a mad Iraqi dictator spring-loaded to attack the United States. They were collecting props -- anthrax vials and undated photos showing centrifuge components and unidentifiable buildings where something ominous might be happening, but we can't afford to wait to find out. They were writing the script: power phrases like "Grave and gathering danger" and "We can't afford to let the smoking gun be a mushroom cloud," designed less to inform than to inflame. And, finally, Rove, Hughes, and company were scheduling appearances for the President's War Council members that would begin just a month later, in early September 2002.
It was to be a bravura performance by the President, the Vice President, the Secretary of Defense, the Secretary of State, the National Security Adviser, and many supporting cast members. The production was so well done, in fact, that, like the radio audience terrified into hysteria by the infamous "War of the Worlds" broadcast of 1938, most of us were fooled. Admittedly, we resisted buying the duct tape and plastic sheeting; we may not have wrapped our heads in wet towels to ward off Martian gas like the 1938 radio audience. What happened, however, was much worse: because of Bush's fiction, we agreed to bomb people 8,000 miles away whose only "crime" was that they were oppressed by a violent and cruel dictator.
Undoubtedly, Americans were panicked by H. G. Wells's radio play in part because they were exhausted and nervous in those tough Depression years. But Orson Welles' breathless report of a Martian invasion was never intended to cause panic, nor was it ultimately harmful.
The President's elaborate production was, and still remains, an entirely different story. It was a deliberate effort to create a permanent state of fear in America. And to say it was harmful is like saying that it hurts to get hit by a Mack truck.
Federal sentencing guidelines recognize that one who defrauds a vulnerable victim, such as a salesman who falsely represents the curative benefits of an elixir to a cancer patient, has committed an even more serious crime than one who defrauds a person who is not so "particularly susceptible." The President knew that Americans were "particularly susceptible" in 2002. We were exhausted, and justifiably terrified, not only because of September 11 but also because of the anthrax murders and the random Washington, DC, sniper killings that coincided with the Bush-Cheney administration's push for war.
President Bush and his White House Iraq Group did not merely exploit this fear; they magnified it. Worse yet, the President was the very person upon whom the public relied to protect it from danger and, one would hope, from omnipresent fear itself. Having used the authority of the Oval Office to make people more afraid, having created an even darker backdrop of fear, our highest officials exploited that reliance and the trust they enjoyed by virtue of their positions to sell something they knew the American public would not otherwise have bought. It was as if the cancer victim's trusted personal physician had convinced him that his disease was more advanced than it really was, and then used the same fraudulently heightened fear to manipulate him into buying a bogus cure-all.
In the language of criminal law, the President and his senior advisers have abused a position of trust to defraud the most vulnerable of victims. How would such a case be presented for prosecution? I invite you into the grand jury room to observe:
Ladies and Gentlemen, tomorrow begins our presentation in the case of United States v. George W. Bush et al. Please remember that you must decide the case based solely on the evidence that's presented and the applicable law, without regard to prejudice or sympathy. In other words, your politics, and any personal feelings you have toward the defendants -- positive or negative -- should have no bearing on your deliberations.
Excerpted from United States v. George W. Bush et al. by Elizabeth de la Vega, published December 1, 2006 by Seven Stories Press and Tomdispatch.com. Copyright 2006 Elizabeth de la Vega.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California. She may be contacted at ElizabethdelaVega@Verizon.net.
Iraq’s Legal System Staggers Beneath the Weight of War
In 2004, the American military detained Laith al-Ani, above in a photo with his family next to his letter to them, but his relatives say they do not know why he is still being held. Scott Nelson/World Picture Network, for The New York Times
Falsely Accused - In May, Abdul Razzaq, far left, a lawyer, persuaded a panel of Iraqi judges to exonerate four men — from left to right, Masoud Noureddin Muhammad Ali, and the brothers Amer, Adnan and Faraj Mahmoud — accused in a Baghdad bombing in 2005. The men said they were tortured to confess; Amer Mahmoud, right, demonstrated how their hands were bound while in jail. Michael Moss/The New York Times
The Courthouse - The Central Criminal Court in Baghdad, established by the United States in 2003. Before the war, it was a museum for gifts to Saddam Hussein. Michael Moss/The New York Times
The Security Detail - The American military unit, Task Force 134, that runs detainee operations in Iraq heads to the court with its security escort.
The Scales of Justice - A courtroom in the Central Criminal Court. The judges sit on the dais in the center; the defendants stand in the enclosure to the right.
The Task Force - Members of Task Force 134, whose lawyers and aides are drawn largely from the military and prosecutor’s offices in the United States.
By MICHAEL MOSS Published: December 17, 2006
BAGHDAD — In a cavernous room that once displayed gifts given to Saddam Hussein, eight men in yellow prison garb sat on the floor facing the wall, guarded by two American soldiers.
Among them was Abdulla Sultan Khalaf, a Ministry of Industry employee seized by American troops who said they found 10 blasting caps and 100 sticks of TNT. When his name was called, he stood, walked into a cagelike defendant’s box and peered over the wooden slats at a panel of three Iraqi judges of the central court.
The judges reviewed evidence prepared by an American military lawyer — testimony from two soldiers, photographs and a sketch of the scene.
The evidence went largely unchallenged, because Mr. Khalaf had no lawyer. The judges appointed one, but Mr. Khalaf had no chance to speak with him. Mr. Khalaf told the judges that the soldiers were probably chasing a rogue nephew and denied that the explosives were his or ever in his house. “Let me examine the pictures,” he insisted. The judges ignored him. His lawyer said nothing, beyond declaring Mr. Khalaf’s innocence. The trial lasted 15 minutes.
The judges conducted six trials of similar length and depth before lunch, then deliberated for four minutes. Five defendants were found guilty; one was acquitted. “The evidence is enough,” Judge Saeb Khorsheed Ahmed said in convicting Mr. Khalaf. “Thirty years.”
The United States established the Central Criminal Court of Iraq three years ago, envisioning it as a pillar of a new democracy. But like the faltering effort to create effective Iraqi security forces, the system for detaining, charging and trying suspects has instead become another weak link in the rule of law in Iraq, according to an examination of the justice system by The New York Times.
The stakes are rising. The court has begun sentencing American-held detainees to death by hanging, 14 this year.
Almost every aspect of the judicial system is lacking, poorly serving not just detainees but also Iraqi citizens and troops trying to maintain order.
Soldiers who have little if any training in gathering evidence or sorting the guilty from the innocent are left to decide whom to detain. The military conducts reviews to decide whom to release, yet neither Iraqi detainees nor defense lawyers are allowed to attend, according to military documents and interviews.
Tens of thousands of detainees have been released by the Americans, often under political pressure from the Iraqis, but American soldiers complain they are apprehending many dangerous insurgents again and again. At the same time, detainees are held for long periods by the Americans without being charged, in some instances for as long as two years.
Even detainees who are formally charged and brought to the Iraqi court have little ability to develop a defense against evidence collected by American lawyers and soldiers. Most defense lawyers are appointed by the court and paid $15 per case. Even if they are so inclined, they are largely unable to gather evidence because of the threat of violence. One American lawyer said that in 100 cases he handled, not one defense lawyer had introduced evidence or witnesses.
The central court resembles the narrow end of a funnel crowded with suspects captured by American and Iraqi forces. No figures are available on prisoners held by Iraqis, but the Americans have held about 61,500 over the past three years and are now holding 14,000, military officials say. Roughly 3,000 have been charged and tried in the Iraqi court.
The court acquits nearly half of the defendants, but both Americans and Iraqis involved in the process say that political interference, threats from militants and the judges’ fear for their lives weigh heavily in many verdicts. The military has found housing in the protected Green Zone for only 12 of the 30 judges on the criminal court. The others commute to work.
“The most fundamental thing that we need to do in Iraq is establish the rule of law,” said Mark Waller, an Air Force Reserve major and deputy district attorney in Colorado, who spent four months this year in Baghdad helping to prosecute detainees. “It’s the cornerstone of a civilization. Without it you have anarchy. And we are falling short.”
Beyond the scandal at Abu Ghraib and the trial of Mr. Hussein, the system of holding and prosecuting detainees in Iraq has largely escaped public scrutiny. The day-to-day details of these government operations emerged from interviews with American and Iraqi officials, former detainees, a review of military records and a visit to proceedings in the Iraqi court normally closed to the public.
A classified Pentagon assessment completed in June of the American effort to strengthen Iraqi justice found one sign of progress: the prosecution of former senior government officials. Everything else, from training judges to building court capacity to minimizing civil rights abuses by Iraqi security forces, had fallen behind, according to the assessment by the National Security Council.
“Iraq’s judiciary is technically independent but unable and unwilling to assert itself or provide a balance to Iraq’s powerful political parties,” it said. “The criminal justice system is overloaded and lacks the capacity to consistently process those arrested and/or detained.”
Even though the American military helps to prosecute cases in the court, it does not always release detainees whose cases are dismissed, officials acknowledged in interviews. Maj. Gen. John D. Gardner, the commander of American detainee operations, orders those defendants held if the military believes they remain a threat. According to military officials, this has happened approximately 60 times, or in about 4 percent of the dismissed cases.
American officials said that within the confines of the nascent Iraqi justice system they were striving to protect American troops, while promoting due process. “Our goal is to balance detaining the people who are the real threats, and releasing those who are not, and that’s a fine line,” General Gardner said.
The justice system is most troubling for people like Intisar Jaafar. Her 29-year-old son, Laith al-Ani, was taken from his home in Baghdad by American troops in October 2004 in a search for weapons his mother said they never found. The military said he was a “security detainee” but would not elaborate.
Mr. Ani, a women’s clothing merchant, is being held at Camp Bucca in the desert of southern Iraq, his relatives said. They have made the daylong trip to visit him, but it brought them no more information about when he might be charged, released or brought to court.
In a recent letter he drew a caged heart reaching out to his wife and two children, and wrote, “I hope I can be dust in the storms of Bucca so that I can reach you.”
A Grand Vision
At 9 a.m. on a recent Monday, two United States Army trucks guarded by seven Humvees pulled to a halt in central Baghdad, just outside the protected Green Zone.
The soldiers fanned out with their rifles ready as a man in a black hood and yellow prison garb emerged, followed by more than 30 others, their hands and feet shackled.
The men shuffled down two flights of stairs into the Central Criminal Court.
The courthouse did not exist before the war, with most criminal cases left to provincial judges. In 2003, the Bush administration decided Iraq also needed a central court — like the American federal judiciary — for major national crimes like significant corruption or violence.
The vision was grand.
“Evil doers will face justice in honest and fair Iraqi courts,” L. Paul Bremer III, the administrator of the Coalition Provisional Authority, said in an address to the Iraqi people in November 2003.
Zuhair Maliky, an Iraqi lawyer tapped by the Americans as a chief judge, said: “It was to be a model for all of the courts around the country, where students would come to read the records and learn how courts work. There was to be a library, a conference room where judges would give lectures, and computers where court records would be kept.”
But that vision has run into the realities of Iraq — the insurgency, a lack of resources and politics.
Security concerns have effectively closed proceedings to the public. Court records are not kept on computers, but mostly in paper files held together by yarn. And the daily proceedings, observed by a reporter, are hardly a model of deliberative justice.
That day’s defendants came from two American detention camps and from sundry Iraqi jails.
Shortly past 10 a.m., two American soldiers escorted Hussan Lotfi Abdulla upstairs to a judge’s office for a preliminary hearing. Mr. Abdulla, who had been in detention for nearly two years, sat next to his court-appointed Iraqi lawyer, whom he had never met.
Facing them in front of the judge’s desk was Capt. Lisa Gorog, a military lawyer who had come to Baghdad to help the military unit that runs the American detention operations in Iraq.
The unit is doubling its legal staff to more than 100 lawyers and aides, drawn largely from the military and prosecutor’s offices throughout the United States.
Even for experienced prosecutors, identifying strong cases among the mass of detainees is difficult given the quality of the evidence. Capt. Matt McCall, who focuses on men like Mr. Abdulla who have been detained in the volatile Anbar Province in western Iraq, said he had to sift through the files of 50 detainees to find 2 that he thought could be convicted. The rest were left in detention either because the soldiers who captured them were not readily available as witnesses or because the evidence was too weak, he said.
The case against Mr. Abdulla presented its own challenges. The one-page case summary prepared by Captain Gorog for the judge said Mr. Abdulla was detained on Jan. 27, 2005, when American soldiers grew suspicious of the taxi in which he was riding. When they forced it to stop, a man got out and tossed a grenade, which did not explode. They killed the man, and searched the taxi where they said they found rocket-propelled grenades, launchers and armor-piercing ammunition.
But Mr. Abdulla had another problem. He is Syrian but had no passport when he was detained. He faced at least 15 years in prison if Captain Gorog could show he had come to Iraq illegally to fight.
After the judge asked some perfunctory questions, Captain Gorog jumped in.
“Why did you come to Iraq?” she asked through an interpreter.
“For work and study,” he replied.
“Why did you come to Ramadi?”
“To visit a friend.”
“Didn’t you know the man throwing the grenade?”
“No. I heard the explosions, but I was lying on the ground.”
“How did you know it was a grenade?”
“The investigator told me.”
“He was right there! Didn’t you see the incident?”
“I was handcuffed on the ground. I didn’t see it.”
Mr. Abdulla’s lawyer remained silent. The judge, who reserved judgment on whether Mr. Abdulla would be tried, asked the clerk to write a one-page summary of the hearing, which the lawyer signed without reading.
In the hall later, Mr. Abdulla’s lawyer, who asked not to be identified for fear he would be killed, said he had been given the case just moments before the hearing and would have liked to have met with Mr. Abdulla, “to know how to defend him.” But he said lawyers had stopped asking to meet with American detainees because judges had denied their requests.
“They said it’s the Americans who don’t allow this,” the lawyer said. “It’s in order that we don’t dictate what they say.”
American detention officials denied that was their policy but said it was difficult to arrange for defense lawyers to meet defendants either at detention camps or at the courthouse before the proceedings.
Although Iraq has an inquisitorial system in which judges are empowered to investigate, question witnesses and elicit evidence, defendants have a constitutional right to a lawyer. “We can’t imagine a fair judiciary system without a defense lawyer where he can practice his duty,” said Diya al-Saadie, who until this month ran the Iraqi Bar Association.
Karen Hanrahan, an international law expert who was the State Department’s rule-of-law coordinator in Iraq until recently, devised a plan to create a public defender system to train and pay defense lawyers. She said it was never financed in part because judicial planning was dominated by American prosecutors who took a dim view of defense lawyers.
American lawyers have been brought in to help prosecute cases. Iraqi judges have been flown to Prague and The Hague for workshops. But, Ms. Hanrahan said, “there was no effort to train and work with lawyers.”
Charles W. Larson Sr., the United States attorney for the Northern District of Iowa and an adviser in Iraq in 2004 and 2005, said his team was mindful of defense lawyers but chose to focus on helping judges because “it is a judicially driven system.”
Rapid-Fire Proceedings
By late morning, the courthouse halls bustled with court personnel, private security guards, Iraqi police, American soldiers and their detainees.
At 11:30 a.m., Judge Saeb Ahmed, the chief judge, entered a large courtroom and took the middle of three seats at the dais. Behind him, the scales of justice had been painted on the wall. Black Hawk helicopters passed outside the windows. Explosions could be heard in the distance.
Judge Ahmed and his colleagues had a full docket, but they worked quickly.
The first two men to stand trial were detained by Iraqi security forces on Jan. 3, 2005, in connection with several Baghdad attacks, one on a hospital. Their families had hired a lawyer, Abdul Ami Ali, for $2,500, and with a flourish he told the judges that he had learned that one of the alleged attacks never occurred. He produced a letter from the hospital administrator to prove it. Judge Ahmed added the letter to the defendants’ file, ended the trial and called the next case.
Sad Mahmud Saleh, a 24-year-old truck driver, was accused by American soldiers of having contraband weapons, including a hand grenade, in his house. His trial consisted largely of Judge Ahmed asking questions. At one point the judge stood and raised his voice.
“Are you a terrorist?” he asked.
“No,” Mr. Saleh replied, standing in the tall wooden defendant’s box.
“Are you involved in any organization?”
“No.”
“Why did they bring you here?”
Mr. Saleh’s lawyer, appointed to represent him just as the trial began, simply asked for mercy.
After four more trials, each lasting about 15 minutes, the judges adjourned and cleared the courtroom. It was 1:05 p.m.
At 1:09, they reopened the doors and announced their verdicts and the sentences.
The American military lawyers had mixed results.
Saif Raad Mohammed, who was detained in January 2005 when soldiers said they found a machine gun with a silencer in his home, was sentenced to six years in prison.
The judges issued a string of long sentences, including 30 years for Mr. Saleh in the hand grenade case, and 30 years for the hospital attackers.
The defendants’ lawyer was devastated, saying he figured that the hospital administrator’s letter would have at least prompted the judges to investigate. Judge Ahmed declined to discuss any of that day’s trials or make available any court records. But The Times obtained the judges’ one-page written decision in the hospital attack case. It made no mention of the administrator’s letter.
The judges dismissed the case against a man accused of joining an armed group after the Iraqi prosecutor told them there was not sufficient evidence.
He smiled as his verdict was read, but he did not leave the courthouse a free man. All the American-held detainees were taken back to the detention center. Those found guilty would be sent to Iraqi prisons. The man whose case was dismissed would be reviewed again by American military officials, who would determine whether to release him.
Overcrowded Stockades
The population of American-held detainees now crowding the central court and the prison camps grew quickly and unexpectedly. Shortly after Mr. Hussein was toppled, American soldiers began pulling looters and other troublemakers off the street.
Judge Gilbert S. Merritt, a federal judge from Nashville, Tenn., who was in Baghdad to help rebuild the justice system, said he asked American officials, “What are you going to do with these people now that you’ve picked them up?”
“They were holding them, here and there in stockades, and most were taken to Abu Ghraib, the only facility that the Americans knew about,” Judge Merritt said.
When the insurgency took hold, the trickle of petty thieves turned into a torrent of people suspected of being terrorists and captured fighters. By the time the Abu Ghraib abuse scandal was disclosed in the spring of 2004, the Americans were holding about 7,500 people.
Largely unnoticed, the flood of detainees has only increased since then. But neither the Americans troops, who were fighting an insurgency for which they were not prepared, nor the newly reconstituted Iraqi police, had a comprehensive plan for handling them.
Untold numbers of detainees have also been captured and questioned by American soldiers, then turned over to Iraqi security forces who often hold prisoners in miserable conditions.
Early last year, a United States Army unit in Baquba found 450 people, including a few women and children, living in hot, fetid cells built for 150. The Iraqis seemed to have little idea where the detainees had come from and had no means to adjudicate their cases. Lt. Col. Robert Risberg, an officer in the unit, said they discovered that roughly a third of the prisoners had originally been captured by the Americans.
“A majority were people lost in this bureaucratic mess, and it took a while to straighten it out,” he said.
The development of the American detainee operation in Iraq runs contrary to the Pentagon’s practice of avoiding the role of jailer in a foreign country and instead, working to speedily transfer prisoners of war to allies. Maj. James F. Gebhardt, a retired Army historian, said this doctrine stemmed from the Korean War when murderous gangs and infiltrators ravaged the American detention camps.
But in Iraq, where detainees were seen as potential sources of intelligence on the insurgency, the military built its own detention facilities and then put a team in charge that had little experience handling long-term detainees. After the Abu Ghraib scandal in 2004, a new detention unit — Task Force 134 — was formed, but it started with a staff of just five to manage facilities holding 5,000 detainees. By the following summer the number had doubled to 10,000.
With the closing of Abu Ghraib in August, the Americans are holding its detainees mainly in two prisons that at times have been filled beyond capacity: Camp Bucca, a sprawling complex in southern Iraq, and Camp Cropper near the Baghdad airport.
Military commanders have come under political as well as legal pressure to keep detainees moving through the system. Iraqi officials have persuaded the Americans to release detainees, saying the long detentions are contributing to unrest and violence.
The military conducts reviews in the camps to screen detainees for release. Many have been swept up at the scene of bombings or other violence, and the detention camp boards have recommended releasing as many as 60 percent of the detainees whose cases they reviewed.
Officials have sought to tighten the evidentiary standards used in deciding whether to detain suspects. Last year, for example, Maj. Gen. William H. Brandenburg, then the task force commander, became concerned about a swipe test that soldiers used on suspects to detect gunpowder. The test was so unreliable that cigarette lighter residue and even a common hand lotion would register as gunpowder.
Military officials have another reason to thin their camps. The longer people remain in detention, the more likely they are to be hardened by the experience, officials say.
“We know that inside the compounds, individuals are trying to recruit and promote a fundamentalist network, and we are trying to mitigate that by fighting a small counterinsurgency,” General Gardner said. In an effort to thwart recruitment, detainees are grouped by level of ideology and are given moderate Arab newspapers.
But releasing detainees carries its own risk. Officials estimate that 6 percent of released detainees, or about 2,800, have been recaptured, some in battles with American troops. Soldiers in Mosul were outraged last year to discover that their commander, Lt. Col. Erik Kurilla, had been shot by a man who was set free by the Iraqi court two weeks earlier.
In September, soldiers captured a man suspected of fighting with Al Qaeda in a raid in western Iraq only to find that he was first caught in September 2005 and released in June in the Iraqi government’s unity and reconciliation program, according to military records and interviews.
The release of detainees is such a concern for Americans that the military has put the onus on soldiers to act like police officers and collect evidence. An instructional guide warns that without “sufficient evidence for prosecution, the detainee will be released” and “may attempt to attack soldiers again.”
The guide instructs soldiers to take witness statements, document tests for explosives and record serial numbers of contraband weapons. It also tells soldiers how to use photographic evidence to its best effect.
When suspects are caught away from or fleeing a crime scene, like a bomb or a weapons cache, the guide tells soldiers to take pictures of the suspects at the scene. For example, the guide lays out this chain of events: “Your squad conducts a raid on a house, in the house you find 2 adult males. 50 meters from the house you find a large weapons cache buried 2 feet underground.”
Among the instructions: “Take pictures of the individuals with the cache.”
A Case Falls Apart
On May 12, 2005, a car bomb exploded near a market in southern Baghdad, killing at least 17 people, and the Wolf Brigade flexed its might.
The brigade, an Iraqi commando unit, stormed a neighborhood in eastern Baghdad and arrested four men. By the next day, Iraqis could see results for themselves.
The four men appeared on “Terrorism in the Grip of Justice,” a prime-time television show broadcast by Iraqiya, which featured commando interrogations. They confessed on the air.
But one year later, the four men, who were held in Iraqi detention and faced death by hanging, walked out of the central court, with all charges dismissed.
Their story, pieced together through interviews and court records, is one of a narrow escape from Iraq’s fractured system of justice. It is also the story of an unlikely civil rights lawyer who beat the system for the four men and a handful of others.
Faraj Mahmoud, 42, a grocer, was not totally shocked when he and his two brothers were arrested that night, with a friend.
Their families had emigrated from Palestine after the 1948 war, and like other Sunni refugees had been favored by Mr. Hussein over Iraq’s own Shiite peoples.
The Wolf Brigade, an Interior Ministry unit made up mostly of poor, young Shiites from Sadr City, had developed a reputation for singling out Palestinians and using torture to extract confessions. The unit’s commander, Abu Walid, who questioned the men on the show, has denied the charges.
In recent interviews, the four men, who have fled Iraq, said they had been tortured in a variety of ways. “ ‘We will beat you until your meat is cooked,’ ” one of the men, Amer Mahmoud, 27, an auto mechanic, said an interrogator had told him.
Faraj Mahmoud, who had married six days before he was captured, said he was stripped and hanged from the ceiling. An electric prod applied to his genitals made his body bounce off the walls, he said. Hania Mufti, a Human Rights Watch official with extensive knowledge of Iraq’s jails, said other prisoners had described similar abuses.
The men said their captors also threatened to fetch their families, and they saw naked women and girls being walked through the jail. That is when they all signed confessions.
Among those watching the television show the night the men confessed was Abdul Razzaq, a 31-year-old Iraqi lawyer, and he agreed to take the case without a fee.
Mr. Razzaq handled mostly divorces before the war. After the invasion he began representing mostly criminal defendants. It took him two and a half months to find the four men in the Iraqi detention system. A jailer demanded $50 to lead him to their cell, he said. It smelled so bad that the jailer wore a mask. “All four of us started to cry,” Amer Mahmoud said. “The lawyer started to cry. We didn’t want to let him go.”
Mr. Razzaq picked apart the case. For starters, one of the Mahmoud brothers had confessed to hiding 600 pounds of TNT beneath the backseat of a car, an Opel, that has no space for such a load.
The lawyer found 14 witnesses who he said could provide alibis for the men. He got statements from the police saying that a string of other attacks to which the men confessed had never taken place.
He also went after the man who had directed the Wolf Brigade to his clients. The court eventually agreed that the man, who had confessed as well, was mentally incompetent.
Along the way, Mr. Razzaq said, the Central Criminal Court was typically frustrating. Clerks asked for money to hasten the preparation of judicial orders, a practice that other lawyers have also alleged. The judge who held the preliminary hearing grew impatient, ordering the four men returned to jail for more questioning, he said.
The trial was still months away when Mr. Razzaq received a note, signed by the families of victims of the car bombing: “This is the last notification to you, for you will be a victim and a cheap sacrifice goat for terrorists. Do not defend those atheistic Palestinian criminals and their followers (the worshipers of the atheist, Saddam), or else your destiny shall be death for sure.”
On May 21, 2006, a three-judge panel ordered the release of all four men and their accuser. Citing their confessions at the hands of the Wolf Brigade, the judges wrote, “If it is assumed that the initial confession was correct, it was not supported by any convincing evidence.”
Faraj Mahmoud said: “We couldn’t believe our feet were touching the ground. It seemed like there were a thousand people at home, singing. No one expected us to get released.”
Two days later, the men and their families fled Iraq. Mr. Razzaq then won an acquittal for a Syrian truck driver detained for not having a passport. But the man was kidnapped as he emerged from the prison with three other freed prisoners and was never seen again, Mr. Razzaq said.
He blames himself. “If I had not gotten him out of prison, he would still be there, alive,” he said. Discouraged about practicing law in Iraq, Mr. Razzaq fled the country in October.
The Military Under Pressure
Many of the cases the American military has brought to the Iraqi central court involve multiple defendants. And the evidence connecting them to a specific attack or other crime often varies widely. As a result, despite many victories for the military in court, about half of the 3,000 American-held detainees who have gone to trial have walked free.
There is much finger-pointing about why prosecutions fail.
“We’re in a wartime situation where judges unfortunately have to be concerned with their livelihood and their lives,” said Judge John J. Carroll III, a federal judge from North Carolina, who was a military lawyer in Baghdad this year. “We’ve had cases where the detainees should have been convicted and weren’t because of political pressure, from the government and even from terrorist groups, indirectly.”
Qasim Hassan al-Aboudi, the manager of legal and media affairs for the Higher Judicial Council in Iraq, blames the Americans for bringing cases without the kind of evidence that Iraqi law requires.
“Your troops make many mistakes,” he said. “Sometimes they destroy the weapons without documenting them, and they put detainees in for a long time so that other detainees can coach them on what to say in court. We can see that criminals get away, but it’s not the judicial system’s fault. It’s the fault of the mistakes in gathering evidence. We have to respect the law.”
The military is starting to bolster its cases with forensic evidence, including fingerprints and bullet-shard analysis, as well as a video conferencing system that allows soldiers who have returned to the United States to testify in the Iraqi court.
Officials overseeing detention operations said they recognized the importance of defense lawyers, and in an effort to help detainees with their cases they are creating legal assistance centers at detention camps.
The gravity of the cases is increasing as the central court imposes more death penalties. Ten of the 14 American-held detainees sentenced to hang have been convicted since September, and all 14 are awaiting transfer to Iraqi executioners pending an automatic review by Iraq’s court of appeals. Mr. Hussein, who has been sentenced to die, was convicted in a special tribunal.
The military declined to identify the men facing death but said they included a man from Saudi Arabia who admitted traveling to Iraq to fight, a Tunisian who participated in dozens of attacks on American troops and three members of a kidnapping ring.
Also awaiting death is Mohammad Munaf, a 54-year-old man born in Iraq who became an American citizen in 2000. He was convicted on Oct. 12 of helping to arrange the kidnapping of three Romanian journalists, who were released unharmed.
Given the state of the justice system in Iraq, however, using the death penalty concerns even one of the American prosecutors who helped bring cases against detainees.
“There are a lot of bad guys out there trying to kill U.S. troops and I want nothing more than to stop those guys,” said Mr. Waller, the Colorado deputy district attorney and Air Force Reserve major. But he said the Iraqi court system needed safeguards to prevent innocent defendants from being sent to the gallows.
“If I had the right guy and I had the right case I think I’d be O.K. with that,” Mr. Waller said. But, today in Iraq, he said, “I don’t think that situation would present itself.”
Copyright 2006 The New York Times Company (emphasis added)
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