30 Dec Bilal Hussein’s Kangaroo Court
As I have written before, the US has done much to minimize the unfairness of the Iraqi High Tribunal. Unfortunately, it has done exactly the opposite regarding Bilal Hussein, the Pulitzer-Prize winning AP photojournalist who has been imprisoned by the US military since April 2006 — most of the time without charge — and is only now facing prosecution in an Iraqi criminal court. The US claims that Hussein “offered to provide false identification to a sniper seeking to evade U.S.-led forces, that he possessed bomb-making equipment, and that he took photographs that were synchronized with insurgent blasts”; the AP insists that he was simply a photojournalist working in a war zone.
It is always possible that the charges have merit. Nevertheless, given that the US is doing everything it can to deny Hussein a fair trial, there is evident reason to be skeptical. Scott Horton at Harpers.com has the run-down:
• Under strong pressure from the U.S. military, the investigating judge closed the case and imposed a gag order. This was requested principally because the U.S. military was concerned about unfavorable media coverage. The Pentagon media strategy involves leaking information as it finds convenient to “friendly new media” (this I take to be wingnut bloggers), but restricting the flow of information to traditional media. The Iraqi judge is fully cooperating with his gag order.
• The U.S. military has assigned a team of five to act effectively as prosecutors in the case. The team is headed by a JAG Captain named Kelvey (or perhaps Calvey). (Says the source: “We recognize, of course, that the U.S. has no authority to prosecute a case in an Iraqi court. That’s one of the reasons that a gag order was essential.”)
• The Iraqi judge is also allowing the U.S. military to present evidence by witnesses through remote television hook-ups from undisclosed locations. This is done particularly to be sure that Bilal Hussein would not be able to cross-examine any witnesses.
• The Pentagon was particularly concerned about the prospect of Bilal Hussein getting effective defense from his lawyer, former federal prosecutor Paul Gardephe. The judge was told to refuse to allow Bilal Hussein’s U.S. lawyer to participate in the case. The judge accepted this advice. Consequently, the U.S. military has a five-man team to press its case, but Bilal Hussein’s lawyer is silenced and not permitted to participate–and all of this has occurred as a result of U.S. Government intervention with the court. The irony of course is that under Iraqi law, the U.S. military has no authority or right to appear and prosecute, but Bilal Hussein’s chosen counsel has an absolute right.
• The U.S. military continues to keep Hussein in their custody and will not allow his lawyer, Gardephe, access to him to conduct interviews or trial preparation without having both a U.S. military representative and an interpreter in the room at all times. Under international norms, this means that Bilal Hussein is not permitted access to counsel: a serious violation of his trial rights. And note that the violator is not the Iraqi authorities, who have no control over Bilal, but the United States Government.
• The Pentagon is convinced that regardless of the evidence presented and the arguments made, Bilal Hussein will be convicted based on its influence wielding and pressure tactics. “The judge announced on the opening day that he would recommend conviction and refer the matter to the Central Criminal Court of Iraq. This was before any evidence or arguments had been produced. Our folks were elated, but concerned that his somewhat rash statement would undermine the credibility of the proceedings. They had expected him to say this only at the end of the proceedings.”
Needless to say, these are not the tactics of a government that believes it has a strong case. Hussein himself, however, will not be the only victim if he is convicted — the Iraqi criminal-justice system will also suffer. The Iraqi judiciary is already structurally and practically dependent on the Iraqi government. It shouldn’t have to do the bidding of the US government, as well.
I’ve been reading David Cole’s book Enemy Aliens, and the Hussein case seems to be another instantiation of the time-honored tradition of the U.S. government trampling the rights of non-U.S. citizens and meddling in the affairs of nominally sovereign countries. At some point, dispassionate observers might start to ask: is this type of action the exception, or the rule?
I should note that this current proceeding is the Iraqi version of our grand jury proceeding. It isn’t the actual trial. Consequently, many of the allegedly objectionable facets of this proceeding are much less objectionable in context.
So you find that spending nearly a year and a half in prison without charge is unobjectionable? Might I suggest you would feel differently if it were you or someone you loved being incarcerated without charge on U.S. soil by a foreign government.
That’s not what he said. He said “many of the allegedly objectionable aspects”, presumably such things as the inability to cross-examine witnesses, which would be outrageous at trial but is the norm in grand jury proceedings.
Let me put it more directly: Do you find that spending nearly a year and a half in prison without charge is unobjectionable? Do you find anything about the U.S. government’s treatment of Hussein objectionable?
Heller posted about the indignity and injustice Hussein has been subjected to, and you respond that it’s all not nearly as bad as it seems … Again, let me posit that you would feel differently if it were you or someone you loved being incarcerated without charge on U.S. soil for so long by a foreign government.
You’ve also not addressed Heller’s last bullet point, where the judge already announced his likely “findings” before the proceedings began. Is this objectionable in the context of a grand jury proceeding? Does the U.S. intend to later restore the procedural guarantees it has so far denied Hussein? (What business is it of the U.S. to extend or deny procedural guarantees to an Iraqi citizen in an Iraqi court case, anyway?) Forgive me at this point if I’m skeptical.