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And Justice Wept…


The NYTimes has an in-depth examination of the criminal justice system in Iraq.  It is a very painful read.  No matter which side of the criminal system you stand on — defense or prosecution — the ultimate goal on all sides is some attainment of justice.  Or at least, it ought to be, anyway.  But this…this is so far from justice, that I am sitting here in despair after reading it this morning:

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.” …  (emphasis mine)

There is so much more in this article, and I urge you to read the whole of it. Read the snippet above again — in over 100 cases witnessed by one American lawyer involved in an advisory capacity, not one defense attorney introduced a witness or evidence.  Not one.  The death penalty is being imposed on several of these defendants — and not even the American legal advisors to the military tribunals are comfortable with the proceedings in which these convictions are being obtained.

Yes, you read that correctly, the Americans are uncomfortable with the evidence that they, themselves, are producing in order to obtain convictions

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.”

It is immensely difficult, even under the best of circumstances, to determine guilt or innocence in complex cases — when you add in the identification and language barriers under which so many of our soldiers are operating in Iraq, and the complex undercurrents of religious and social rivalries, the deisire for revenge or greed that may factor into some of the identifications of potential insurgent target arrests, and all of the other things that are involved in investigating criminal matters in a nation where the police force is bombed pretty much on a daily basis by people who hope that they cease to function altogether…you get a small slice of what life must be like for the judges and lawyers who have to risk their lives every day just to make it to the courtrooms in which they work.

This is a problem so vast, with a system so integral to the functioning of a civil society…and it is not working.  Not at all. 

Yesterday, there was another round of mass kidnappings in Baghdad — this time at the offices of the Red Crescent, pulling desperately needed aid workers off the job and throwing the workings of the group (and their families) into chaos.   Whether this was intended as some sort of aid message, throwing Iraq even further into the spiral for more and more destruction, or whether this was simply a ploy for the kidnappers to make more money (this has become a tool of leverage for monetary gain, which is why so few Iraqis venture out of their homes unless it is necessary to do so these days), is unclear at the moment.

But after reading the NYTimes article on the judicial system, even if people are arrested for the kidnappings, how can anyone be certain that the correct people are apprehended or even convicted — or not, since there seems to be some vast history of catch and release of insurgents. 

What a mess.

I have asked a jury for and obtained convictions on defendants that put them in the prison system for life.   It is not an easy thing to ask for someone else's existence, that they be locked away in a cell with little to no hope of release — and you weigh that request very carefully when you make it against all of the evidence at hand, including information about the defendant and the magnitude of the crime(s). 

I cannot imagine functioning even remotely on any sort of appropriate basis for decisionmaking within the chaotic mess that is Iraq — under threats of death for yourself or your family, constantly wondering if you will make it to your job at the courthouse in one piece, not being able to meet with clients or, if when you do, not having any of the information about evidence obtained against him or her to adequately prepare a defense…and it goes on and on.  As a prosecutor, having to rely on flimsy evidence and, wanting more than anything for the violence in your community to be brought under some control, trying to trust that the information brought to you is accurate. 

Or, in the alternative, the possibility being that the police and prosecutors work in tandem for one faction or another exacting revenge on another faction as rivalries and civil strife heats to the boiling point.  And if you are an American advisor with little to no background in the region and barely any language skills, how exactly would you be able to know the difference? 

And Justice wept.

(H/T to Scarecrow for e-mailing the NYTimes article link to me last night.  Thanks much for the heads up.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com