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U.S. Troops Maneuver Through Legal Maze As They Detain Terror Suspects

  • Richard Tomkins

Iraqi police take a suspected member of Al-Qaeda from his cell in Diyala Province. The man was arrested on the basis of a court-issued warrant, something U.S. forces will need for detentions starting January 1. (Photo by Richard Tomkins)

Iraqi police take a suspected member of Al-Qaeda from his cell in Diyala Province. The man was arrested on the basis of a court-issued warrant, something U.S. forces will need for detentions starting January 1. (Photo by Richard Tomkins)

BAGHDAD -- U.S. troops implementing a key provision of the new Status-of-Forces Agreement between the United States and Iraq are maneuvering through a maze of ambiguity in an effort to properly detain terrorism suspects.

It’s not a case of the devil being in the details. It’s a lack of details, period.

Article 22 of the pact, renamed the Strategic Framework Agreement, is clear. It requires U.S. troops, starting on January 1, to obtain arrest warrants from Iraqi courts before detaining suspected terrorists or extremists in noncombat situations. U.S. troops must also obtain a warrant before searching a home or other premises for weapons or contraband.

What isn't clear, however, is how U.S. troops can obtain such warrants, from whom, and with what kind of evidence.

"Our job, first off, is to figure out how the [Iraqi] system is supposed to work in obtaining a warrant," says Major John James, a Prosecution Task Force (PTF) team leader from the 4th Division's 3rd Brigade Combat Team.

"We engage with the Iraqi judges, engage with the judicial investigators, with the police, with the Iraqi Army to see what venues [to obtain a warrant] work, what avenues of approach are going to work for us," James says. "Things have not been codified at the highest levels of the Iraq government on down...but we're making our way ahead.”

Revenge Targeting

The 4th Infantry Division, whose area of operation is the city and province of Baghdad, decided in October that at least some of its units would begin implementation of warrant-based detentions and searches starting on December 1, a full month ahead of the effective date of the then-unfinalized Status-of-Forces Agreement. The agreement replaces an expiring UN mandate for the presence of U.S. troops in the country.

Serving warrants is a job for a cop, not for a U.S. soldier.
Prosecution Task Forces were established throughout the 4th Division and began working with Iraqi security forces -- the army, local police, and national police -- to identify judges not only with the authority to issue warrants in terrorism-related cases but with the will to do so.

Many judges fear revenge targeting by extremists and don't want to be seen with U.S. troops. Iraqi security personnel often act as intermediaries, establishing contact and gaining their cooperation, PTF officers say.

Differing standards of evidence among judges are also part of the problem.

Some judges require just one detailed witness statement as part of an evidentiary packet, while others require two or more. Some judges will accept fingerprints lifted from an unexploded bomb, for example; others will not.

'They Are Afraid'

Indeed, gathering such evidence is the most time-consuming aspect of warrant-based targeting.

“A major difficulty is getting the kind of evidence that we can give to Iraqi judges to look at," says Major Rana Wiggins, a legal officer in the 3rd Brigade Combat Team.

"We can’t give them any classified information [to protect intelligence sources and methods]," Wiggins says. "But there are people out there who know, who see things. Of course, they are afraid and not coming forward, but that’s something we can work with the ISF [Iraq Security Forces] on -- getting out there, getting the word out that we're looking for information on a particular person.”

Cooperation between U.S. troops and their ISF counterparts is proving invaluable. The ISF's closer contact with the populace helps in the identification of suspects, the tracking down of witnesses, and the taking of statements.

Wiggins says several warrants have already been issued after U.S. troops gave probable-cause warrant packets to Iraqi police or soldiers. The Iraqis ferreted out witnesses and found additional evidence before giving the packets to judicial authorities.

Soldiers from the 3rd Brigade Combat Team in east Baghdad currently have more than 60 warrants in hand. At least 10 of those are warrants U.S. troops applied for through their Iraqi counterparts, and more are in the pipeline.

The remainder are legacy warrants, those the Iraqis obtained earlier and which can be used by U.S. troops. Among those on the list are "most-wanted" operatives from Al-Qaeda and Iranian-backed Shi'ite "special groups," such as Kataib Hizballah, Asaib al-Haqq, and Abu Dura.

Establishing positive identification of suspects is another hurdle.

Soldiers working with PTFs spend hours crosschecking photographs and other biometric details against U.S. and Iraqi files. They also crosscheck the spellings of names and pseudonyms -- a constant problem stemming from Arabic-English transliteration.

'Job For A Cop'

Despite the successes, however, there are feelings of confusion -- even frustration -- among some U.S. soldiers who must adhere to the new stipulations.

"[The need for warrants] means we should go home," one sergeant who requested anonymity says. "Serving warrants is a job for a cop, not for a U.S. soldier."

But the Strategic Framework Agreement is a visible, legal symbol of Iraq regaining its sovereignty and can’t be ignored, even if it means allowing suspects to slip out of the net.

For example, U.S. troops who see a terrorism suspect or other suspicious individual in a vehicle at a checkpoint will simply have to let that suspect go unless they already have a warrant for his arrest. Only if he poses an imminent danger to their safety, commits an offense in front of them, or is in possession of a weapon can he be detained.

"Our hands will be kind of tied with that, but we have to respect Iraqi law," Wiggins says. "That's what's required, and that's what we're going to do."