It may seem hard to imagine a place where people incarcerated by the US military have fewer rights than they do in Guantánamo Bay.
Welcome to Iraq.
It is just after 4 am, and hundreds of Iraqis are lining up to visit their relatives outside Camp Bucca, which in August held about 18,000 detainees. Near the Kuwaiti border, Bucca shimmers in the predawn of the southern Iraqi desert, a beacon of light in a country where electricity is on for no more than twelve hours a day. It is the US military's largest detention center in Iraq. The total number of those officially in US custody in Iraq has fluctuated between a low of 7,200 and more than 26,000 since 2005.
The three hotels in Zubair, one of the closest towns to Bucca, are always full. "We don't have tourism here," says Jabbar Mubarak, the clerk at the Tower of Babil, Zubair's largest hotel. "Everyone who comes to our hotel comes to visit their sons." The lobby swarms with families, some of whom have driven more than ten hours. Despite major offensives in the past year against the Mahdi Army, Iraq's largest Shiite militia, about 80 percent of those in custody here are Sunni and hail from the central and northern parts of the country.
One of the biggest complaints is that the vast majority of detainees have not been charged with any crime. "Why don't the US forces charge him if he has done something? Then at least we would know how long he will be here," said Hadia Khalaf, whose son Qusay was arrested in September 2007. "He was our provider," she said, reflecting the plight of many families who rely on extended family and charity to survive.
Since 2003 approximately 96,000 Iraqis have been officially detained by the US military, with 100,000 more having been temporarily detained but never sent to a theater-level internment facility like Bucca. The other theater-level facility currently open is Camp Cropper at Baghdad Airport, which serves as the system's in- and out-processing center and holds about 3,000 detainees, including roughly 300 juveniles.
The legal basis for detentions stems from a single line of a 2004 UN Security Council resolution, which has been renewed every year since by agreement between the US and Iraqi governments. This resolution, which gives the legal justification for continued US military occupation, allows "internment where this is necessary for imperative reasons of security."
Iraqi Prime Minister Nuri Kamal al-Maliki and US Secretary of State Condoleezza Rice are negotiating a status of forces agreement between the two governments that they hope to reach by the end of the year, when the current UN mandate expires. A key issue at stake is detentions, part of a broader area of contention between the two governments over the rights that US troops should have to operate unilaterally in Iraq. The Iraqi government has demanded that the US military no longer be allowed to detain Iraqis without its approval. The State Department and White House have been largely mum about the discussions, while Maliki's office has regularly leaked parts of the agreement and says that the final sticking points are whether US troops will continue to be immune from prosecution under Iraqi law and the extent to which the US military will have to coordinate with and receive approval from the Iraqi government before launching operations.
On the issue of detentions, Joseph Logan, a researcher for Human Rights Watch's Middle East and North Africa section, thinks an amnesty might be the answer. "If you don't have the evidence to transfer someone to the Iraqi system, it's probably the case that their outright release should be considered," Logan said. "It does seem they've been expediting the process of clearing some people out, and that's praiseworthy. But that doesn't deal with the underlying legal problem--that these people can't challenge their detention and don't have counsel."
What constitutes an "imperative" security threat is left up to those in charge of reviewing detainee cases. "The idea is not to tie the hands of the ground troops," said Capt. Dylan Imperato, a military lawyer at Cropper. Logan thinks this is left purposely vague. "The US is on the one hand claiming broad powers of detention, and at the same time is claiming the conflict is not a war or occupation," he said. "You can't have it both ways. If you want these completely unchecked powers of detention, you have to occupy the country again"--that is, revert to the legal status before the 2004 UN resolution.
Detainees receive an initial review of their case before being sent to Cropper, but they are not allowed to attend it. The reviews are conducted by a panel of three US military officers. Detainees are allowed to attend later reviews, but at no point are they given access to a lawyer.
"The level to convict at a criminal court would be a higher level to reach than to determine whether or not they're an imperative security threat," said Imperato. "We don't limit [the review boards] in any major way. We give them broad discretion to make that determination." Imperato said there are many considerations for determining whether a detainee will be held for another six months or recommended for release. "You're not determining guilt or innocence, and you're not strictly looking at the conduct that got them into [detention] in the first place. You're looking at what their plans are when they get out," Imperato said. "Does he have something to go back to? A family, a job? Something that would make him less susceptible to Al Qaeda or any other group?"
Detention can be extended indefinitely. According to a military spokeswoman, about 10 percent of those held have been in detention since 2005 or earlier, 20 percent since 2006, 50 percent since 2007 and 20 percent were detained this year. The numbers are dropping, with an average of forty-five detainees being released and thirty being entered into the system each day.
Detention operations have been a rocky road. Torture and abuse at Abu Ghraib in 2003 and 2004 received the most coverage, but thousands of prisoners living in leaky tents outside the prison's "hard site" complained of lack of medical care, indifferent and at times hostile treatment from guards, inedible food and extreme weather, including flooding. American troops even admitted at the time that they believed more than 80 percent of those detained were innocent of wrongdoing. Recently released Iraqis, as well as Iraqi officials, say that this statistic is probably still true.
Torture also certainly continued past 2004. On a visit to Abu Ghraib in March 2005 (it has since been closed), I saw a detainee who had been strapped to a chair and left in the pouring rain. Only after reading former interrogator Tony Lagouranis's book Fear Up Harsh did I learn this was a tactic used to induce hypothermia. At the time the guards told me the prisoner had been restrained because he refused to stop throwing feces at his captors.
The system has come a long way. In general, the released detainees I spoke with said food was good and that treatment was far better than what one could expect in Iraqi government-run prisons. None of the prisoners I interviewed spoke of the vocational programs as highly as US spokespersons did, but they did say that some were available. None complained of abuse during detentions or interrogations once in Cropper or Bucca, though some said they had been beaten and roughly interrogated before being put into the theater-level system.
"The first three days they didn't give me any food," said Samir Mohamed, who was arrested in 2007 while driving between Damascus and Baghdad. He said he was blindfolded for three days while he was interrogated and beaten. "They put cigarettes out on me," he said. One US soldier I spoke to who requested anonymity said the CIA maintained an off-the-books "black site" at Camp Anaconda near Balad as recently as mid-2007. I have not been able to confirm this independently.
Some detainees, including one who believed he had been arrested by US Special Forces, said they waited more than two weeks before being entered into the theater-level system, a violation of the military's rules. And Mohamed, the detainee who said he was beaten, said he went eight months without a hearing, before suddenly being released.
But if the treatment once incarcerated is generally better than in the past, the intelligence that puts Iraqis there does not seem to be. "I was working as a guard at a gas station," said Jassim, who was arrested in August 2007, during the surge in Baghdad. "There were eight of us working as guards, and they lined us up and said, 'We'll take the first four.'" The US military has admitted that the surge led to a surge in detainees as well, as a result of increased raids, which strained an already overcrowded system and elicited fresh reports of arbitrary detentions.
The number of troops and contractors tasked to detention operations has grown considerably and now totals approximately 10,000, according to one spokesman. The increased manpower has allowed cases to be reviewed every six months, and the military says 330 days is the average length of detention. Nonetheless, inmates said the situation inside the prisons, which US officials recently admitted had included incarcerated insurgents running their own courts, can range from boring to dangerous, although the US military claims insurgents are no longer meting out their own justice.
The first time Abu Wissam, 58, was arrested by US troops was in a roundup in December 2003. He was arrested again in September 2007. He has spent most of the latest detention in Bucca's Camp 26, which is known as a takfiri camp, since takfiris--Sunni Muslim extremists who consider Shiites to be heretics and non-Muslims--have been allowed to run it. "Sometimes they wanted to punish a prisoner," Abu Wissam said. "They would put someone in the camp and tell the takfiris, 'This guy worked with the police.' The takfiris hate anyone who works with the Iraqi government or the Sahwa or the police."
"The Sahwa people were scared to sleep inside," Abu Wissam said, referring to the movement of former Sunni resistance fighters who have made a marriage of convenience with the US military since late 2006 to battle Al Qaeda. He and other prisoners I interviewed said interrogations mostly focused on general questions. For Abu Wissam it was things such as "did you fight against Israel?" during the 1973 war--apparently considered a mark of suspicion by US interrogators but something that a member of the Iraqi army would have been shot for refusing to do. Abu Wissam said he was given a paper to sign, admitting guilt to a list of charges that included murder, attacking US troops, kidnapping and sectarian cleansing. In July the US military admitted that Islamic extremists had been running courts inside Bucca for years and even carrying out killings inside the prisons.
Abu Wissam also said the takfiri camp received fewer services than other camps, and that medical treatment could be restricted based on the camp's color-coded designation--red when there were disturbances, orange when things were calmer. "If someone was sick, we had to put his bed next to the door of the camp and leave him there so that the American soldiers would see he was sick and needed medical treatment." Abu Wissam said he complained about the treatment, especially the fact that all prisoners suffered because of the actions of some. "I asked the American officer, 'Why do you treat all of us like takfiris?' and he said, 'You killed our friends. You are all takfiris.'"
If that exchange suggests collective punishment of prisoners, the review process shouts it. Detainee review hearings at Camp Cropper are held in a sparsely furnished trailer. An Iraqi flag hangs on the wall, no doubt an unintended irony. Prisoners swear on a Koran before three US officers, who read a list of accusations.
In one hearing I observed in early August, the defendant had been rounded up with relatives after a weapons cache was found nearby. The military strongly believed the young man's father was an insurgent, but the officers thought it was more than likely the accused had been picked up simply because he happened to be there. Regardless, it had been enough to hold him for at least four months.
"I just want to go back to school," the young man told the officers when given a chance to speak. "I have missed a year because of this." "You're still young," one of the officers replied. "You'll have time to catch up."
Before being dismissed, and despite the fact that the three officers said they believed the young man had nothing to do with the weapons found near his house, he was still given a speech that appeared to be standard. "It's your responsibility to report [suspicious activity] to the government or the police," one of the officers told the young man.
Though Captain Imperato insisted the purpose of the hearings is not to determine guilt, at another hearing I attended the officers asked the detainees if they had been responsible for the alleged crimes and, during a third hearing, whether the detainee was a member of the Mahdi Army or knew anyone who was.
"I don't think that there is a law that covers what we're trying to do--that is, to detain people indefinitely. There have been terrorist acts throughout history, so this war is never going to end," said retired Adm. John Hutson, a military law expert. "The 250 guys at Guantánamo can have habeas corpus, but the thousands of detainees elsewhere don't have any rights. I think we have focused like lasers on Guantánamo because it's iconic and it's ninety miles off our shore. But you can't make legal, diplomatic or moral distinctions based on the locale of the detainee. We've worried about Guantánamo, but there are more detainees elsewhere. Whatever rules we come up with have to apply across the board."
But a discussion with retired Col. Janis Karpinski, who was first tasked with detention operations in Iraq, indicates that the system has in many ways stayed mostly the same since 2003. (It was Karpinski, then a brigadier general, who was in charge of the military police brigade that ran Abu Ghraib when the torture photos were released in 2004. She was charged with dereliction of duty and demoted to colonel; Karpinski claims the abuses that took place under her nominal command were carried out under orders from officers reporting to a different chain of command.) The military is still trying to reconcile international law with a conflict that the US government refuses to acknowledge is either a war or an occupation.
"There has never been a situation, a war, nation-building anywhere, where military police units were called to run a country's prison operation," Karpinski said. "Why? Because they call in United Nations forces once an area has been cleared."
Bucca was originally slated to be shut down in late 2003, Karpinski said, before Maj. Gen. Geoffrey Miller and his staff, who were responsible for setting up Camp X-Ray at Guantánamo, took over from Karpinski. Karpinski said Miller told her he would "Gitmo-ize" the system, after which Abu Ghraib and then Cropper became the main center for interrogations.
"Bucca is holding this massive population of Iraqis who were hauled in and are security detainees that have no intelligence value. When you determine that they have no further intel value, you transfer them to Bucca," Karpinski said.
When Miller visited Iraq in 2003 in anticipation of taking over detention operations, Karpinski asked his top lawyer, Lt. Col. Diane Beaver, what the release policy was at Guantánamo. "I asked her specifically about release procedures for the prisoners at Gitmo," Karpinski said. "Thinking, naïvely, we might be able to learn something from their procedures. Beaver looked at me like I was crazy and arrogantly said, 'Release, ma'am? There is no release plan for our prisoners. Most, if not all of them, will spend every last day of their lives at Gitmo.'"
Outside Bucca, as the sun comes up, Ali, 12, reads a letter he has written to his father. "Dear Daddy, How are you? I hope you are doing well. I miss you so very much and I miss you taking me in your arms. Dear Daddy, we are all doing well, thank God! I pray that God gives me and Mommy and my sister Nour the patience to survive while you are absent. I asked God to help you and all the detainees with you to be released. Dear Daddy, you can rely on God, then on me, to take care of the house and the family. I cry every day, every day thinking of you. I pray for you because you are oppressed. I ask God to release you from your misery, Inshallah!"
Around him, other families, almost all women, wave pictures of the incarcerated. One woman has five sons inside; another has a brother who has been in US prisons since 2004. Another says this is her twelfth visit to Bucca. All say that the trip is a financial strain. One says that without her husband to support her, she has been reduced to begging. Others complain that their children are depressed and failing in school.
"Most of the visits we spend crying," says Shaimaa Jumaa. "It's not just that they keep them locked up and we don't know what they're charged with. It's that they are separated from their families."