U.S. military courts and the war in Iraq.

Author:Frank, Michael J.


Throughout its history, the United States has frequently entrusted to military courts the task of prosecuting insurgents and terrorists during instances of military occupation.

Instead of carrying on this tradition in Iraq, the United States created the Central Criminal Court of Iraq (CCCI) and entrusted a band of Iraqi judges with this task. Infected with corruption, nationalism, tribal loyalties, and anti-U.S. animus, this court has repeatedly thwarted the United States by acquitting or only lightly punishing Iraqi terrorists. Thus, the terrorists have learned that they face an excellent chance of acquittal in the CCCI, or if per chance they are convicted, they must simply bide their time until their short sentences have expired, at which point they will be free to kill again.

This Article discusses the numerous problems engendered by the CCCI and proposes a return to the tradition of using military courts. It demonstrates the superiority of U.S. military courts and the advantages they would entail, including major gains toward winning the war in Iraq.

TABLE OF CONTENTS I. THE INHERENT DEFECTS OF THE CENTRAL CRIMINAL COURT OF IRAQ A. Classified Evidence and Fearful Witnesses B. Crime Scene Depictions and Submission of Weapons to the Court C. The Refusal to Draw Inferences or Accept Circumstantial Evidence D. Disproportionate and Disparate Sentences E. Paltry and Inadequate Sentences F. The Neglect of Capital Punishment II. BIAS AND CORRUPTION OF CCCI JUDGES A. Nationalism, Tribalism, and Ethnic Loyalties B. Baathist Affinities C. Corruption D. Religious Bias E. Fear and Apprehension III. U.S. MILITARY TRIBUNALS A. Judicial Precedent for Utilizing Military Tribunals During an Occupation B. The Wisdom of Using U.S. Military Courts to Try Iraqi Terrorists 1. Trials by Fair and Impartial Judges 2. The Protection of Witnesses 3. A Reasonable Accommodation of the Rights of Accused Terrorists and the Responsibility for Waging War Effectively 4. Implementation of Fair and Modern Evidentiary Rules 5. Trials According to U.S. Law as Opposed to Sharia-Influenced Iraqi Law 6. Reaping the Benefits of Plea Bargaining C. The Resources that U.S. Military Courts Would Require IV. CONCLUSION An important incident to the conduct of war is the adoption of measures by the military command, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (1) Long before the advent of modern warfare, the Supreme Court described martial strife as "a suit prosecuted by the sword." (2) In the contemporary world, however, the sword has been replaced by more potent weapons and thus the sword is almost never used in battles anymore. (3) War does continue to be the prosecution of a suit, though perhaps not in the form the Supreme Court would have recognized in 1827 when it made its observation about warfare. Increasingly, litigation in criminal, civil, or specially-created courts has become a facet of martial conflict. (4) This is perhaps a natural extension of both warfare and litigation considering that the goal of each of these endeavors is resolution of the underlying dispute. Martial dispute resolution differs from legal dispute resolution mainly in the form of the combat, but their essence shares more similarities than most would like to admit. "What we call judicial proceeding is obviously taking the place of a fight," (5) and the courtrooms in which these fights occur may be thought of as simply another battlefield of increasingly complex wars. (6)

Insofar as litigation has been used to attack political foes or obtain political goals, (7) it should come as no surprise that litigation has become a key instrument of modern warfare. Warfare, after all, "is not merely a political act but a real political instrument, a continuation of political intercourse, a conduct of political intercourse by other means." (8) Recently martial litigation has been tactically and offensively employed against the United States, (9) but the United States has also used this weapon during previous conflicts and in post-conflict stability and reconstruction operations. (10) The recent use of martial litigation has even resulted in the coining of a new term: "lawfare." (11) Although this term originally was used primarily to denote lawsuits filed against the United States to hamper its ability to wage war against Islamic terrorists, (12) one would be remiss in failing to note that litigation--primarily the prosecution of war criminals and terrorists in occupation courts--has from time-to-time proven to be an effective weapon in the U.S. military arsenal, such as in the trials at Nuremberg after World War II. (13)

In various conflicts, lawfare has been used to demoralize the United States' enemies and garner support for the war effort, at home and abroad, particularly when occupying enemy territory. Although lawfare is not literally an act of force, forceful litigation can affect the outcome of a war just as effectively as kinetic weaponry. Thus, for example, throughout history various individuals have attempted to use judicial proceedings to demonstrate the moral depravity of their enemies or the justness of their cause. (14) This often assists the war effort by emboldening potential allies, inhibiting support for the enemy from its own civilian populace or third parties, and serving as a reminder to would-be aggressors that, unless they abandon their aggressive plans, their fate might include a trip to the dock. (15) When properly managed and publicized, lawfare can devastate morale and sow dissension in the ranks of enemy troops, thereby inhibiting the enemy's will to fight and impeding the essential support from the civilian population. (16)

Martial litigation can also be used to deter war crimes, both by the immediate enemy and, more generally, against future enemies who want to avoid the same fate. As Chief Justice Stone, writing for the Supreme Court, noted, "The trial and punishment of enemy combatants who have committed violations of the law of war is ... a part of the conduct of war operating as a preventive measure against such violations...." (17) The systematic presentation of reasoned arguments and objective evidence also allows for a dispassionate review of war criminals' misdeeds and an opportunity to affix guilt and apportion blame. Though always imperfect, expensive, and time-consuming, an organized system for waging lawfare can pay dividends both on and off the immediate battlefield. (18) The key to its effective use, of course, is recognizing when martial litigation can supplement traditional military action--the direct use of force--and when it will prove an obstacle to traditional military operations. (19)

Unfortunately, the United States has not fully taken advantage of and enjoyed the fruits that can be reaped from the prosecution of war criminals, particularly with respect to terrorists operating in the Iraqi theatre of operations. This is due in part to the effects of the lawfare being waged against the United States with respect to the prisoners at Guantanamo Bay, Cuba. (20) This lawfare, in turn, has resulted in the abdication of the duty to ensure that Iraqi terrorists who murder and attack U.S. troops and British troops are properly punished for their crimes. Rather than prosecute these insurgents before U.S. military judges--a purely executive function and well within the ken of the U.S. Armed Forces--the U.S. government elected to entrust this task to Iraqi prosecutors and Iraqi judges of the Central Criminal Court of Iraq (CCCI). (21) For reasons discussed more fully below, this has proven to be an egregious mistake.

For starters, the prosecutors and judges of the CCCI have made every effort to protect the insurgents who are tried before their court. Steeped in a peculiar brand of Islamic and European civil law, (22) the CCCI judges use arcane procedures and bizarre rules to keep these terrorists from experiencing the full effect of the law and the full force of U.S. justice. (23) For example, the CCCI refuses to convict defendants unless at least two witnesses testify that they personally observed the defendant commit every element of the crime charged. (24) Ever hostile to the accusations made by U.S. soldiers, the judges refuse to cross-examine defendants and their alibi witnesses; they instead aggressively interrogate U.S. witnesses in an attempt to elicit even the smallest contradiction. (25) The judges then acquit the defendants based on these purported contradictions. In other cases, family members who have assisted terrorists in escaping or covering up their crimes are not convicted of obstructing justice, and instead the Iraqi judges give them complete immunity for their actions, (26) thereby encouraging members of dissident tribes to conspire against U.S. forces. The CCCI judiciary also refuses to impose the mandatory minimum sentences that the Coalition Provisional Authority enacted, and they find any excuse to acquit or impose laughably lenient sentences on brutal terrorists. (27)

It would be difficult to catalogue the full panoply of tactics used by the CCCI judges to foil justice and shield their countrymen from prosecution. Accordingly, this Article discusses but a few of the more egregious policies. This Article also articulates the various motivations behind the judges' behavior, including their loyalty to the Baath Party, nationalism and tribalism, corruption, and their devotion to various tenets and practices of their Islamic faith. The Article concludes that, because the judges have greater affinity for the insurgents who share a common religion, ethnicity, citizenship, language, and often the same political affiliation or tribe, (28) the judges frequently find ways to treat insurgents leniently, thereby encouraging terrorism at the expense of U.S...

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