Iraqi Detainees Being Tried in a Nonfunctional Legal System

TECHNORATI TAGS: Iraq, detainees, legal system, military, judicial system, democracy, trial, United States

At Guantanamo, hundreds of detainees are shipped back to the Middle East. There, most of them are released -- having been held for up to three years with no charges or trial, and labeled as "dangerous criminals"; "the worst of the worst."

Also at Guantanamo, hundreds of detainees who still remain in the prison camp await "trial" by military tribunal according to the provisions of the Military Commissions Act, under which the U.S. government will have the right to withhold evidence, while the detainees will be stripped of their habeus corpus rights, will have no right to see the evidence against them, will have no access to U.S. federal courts, and will have no right to appeal the U.S. government's decision. Essentially, defendants will be found guilty by reason of the Bush administration saying they are guilty. They will not have to prove it; there will be no presumption of innocence.

In Iraq, paramilitary units and death squads own Baghdad and most of the rest of the Sunni heartland; Iraqis find corpses in the street every day that were not there the day before; leaving the house is a suicidal decision; torture and execution are as routine as breathing; and those Iraqis who are not lucky enough to be able to flee the country are just waiting for their turn to be killed.

And today, a 7-screen article by Michael Moss in the New York Times tells us that Iraqi detainees arrested and detained by the U.S. military are tried in a legal system where no one knows anything about the law and there is no recognizable legal infrastructure at all:

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.

It's horrifying. But what is even more horrible is that the U.S. completely lacks the moral authority or standing to fix the problem, even if it wanted to do so. The same medieval legal system is deciding the fates of hundreds of detainees 90 miles from the Florida coast. The same contempt for centuries of legal procedure, for the provisions of our own founding documents, for the freedom and civil liberties of our own citizens poisons our own society. If a U.S. citizen can be held in a military brig for four years without being charged with or tried for any crime -- without even having access to an attorney for much of that time -- then how likely is it that the U.S. will see any interest in creating a legal system worthy of a democracy in Iraq?

Via Firedoglake, where the photograph of Justice weeping really says it all.