Iraqi courts to decide fate of America's detainees

Within days the US military will begin transferring 1,500 detainees – many of them suspected bombmakers, insurgents, and criminals – every month for the next year to Iraqi authorities. Iraqi courts will then decide who should be freed and who should stay in jail.

Those decisions will have a profound impact on the future of Iraq and the fragile state of security here. While freeing many of the 15,100 detainees who remain in US custody is key to national reconciliation, it could also feed an insurgency that has largely been defeated.

What's more, while Iraqi courts have made great strides, some international observers question whether the system that is notorious for torturing prisoners is ready for a massive influx of detainees.

"This is a complicated thing to do in the most sophisticated of societies, and I think the Iraqis will get there at some point, but I'm not sure that they're there now," says Judith Yaphe, a senior fellow at the National Defense University in Washington. "On the whole I would think that it's better to let the Iraqis deal with this, but you can't let up your guard."

The detainees must be handed over beginning Feb. 1 as part of the Status of Forces Agreement (SOFA) that went into effect Jan. 1 and dictates the terms of the US military presence in Iraq. The Americans have evaluated each prisoner in terms of their potential threat in an effort to guide their decisionmaking.

Of the 15,100 detainees currently in US custody – down from a high of 26,000 in November 2007 – American officials expect the Iraqis will release between 9,000 to 10,000, while the remaining prisoners will face hearings. Many of those freed will benefit from an amnesty law passed by the Iraqi parliament that will pardon many for selected crimes committed before February 2008 – from weapon possession violations to planting a roadside bomb that did not kill or injure anyone.

"Personally, I don't think it's a good law, but it will help [with] national reconciliation," says Judge Abdul Sattar Bayraqdar, spokesman for the Iraqi High Judicial Council speaking specifically about pardoning someone who has planted a roadside bomb. Still, he also says that there is less of a reason for people to make bombs now that the US is beginning to draw down its forces.

Iraqi officials insist that those guilty of serious crimes will not fall through the cracks and be released from custody. If a particular suspect deemed dangerous can't be tried for a certain crime because of the amnesty law, officials say they could use another statute that can be used to convict a detainee.

"Anyone whose hands are covered in blood – with Iraqi or American, from criminal or terrorist attacks – will be sent to court," says Brig. Gen. Hussein Kamal, deputy minister of intelligence at the Ministry of Interior.

Many detainees captured two or three years ago, if given a reprieve, will be released into a much different Iraq. Not only has violence fallen, but many key insurgency leaders have been killed or captured and public support for militant groups has plummeted.

Additionally, in US detention facilities coalition forces have offered detainees vocational and literacy training, among other programs designed to provide them with options other than the insurgency upon their release. Islamist extremists were also offered exposure to more moderate interpretations of Islam on a voluntary basis.

"The reconciliation starts inside the camps," says US Army Brig. Gen. Dave Quantock, commanding general for Taskforce 134, charged with detainee command and control in Iraq. "We take the counterinsurgency model and we apply it to detainees … so the camps don't become a recruiting ground and then they can reconcile for the most part among themselves before they get released."

Indeed, the US has come a long way since the 2003 Abu Ghraib prison scandal in which guards were photographed torturing inmates, and now many families are relieved to hear arrested relatives were sent to US facilities and not Iraqi ones, say diplomatic sources.

Despite the conditions in many US-run detention facilities, international judicial authorities have long been critical of the legal procedures used by coalition forces to imprison suspects. Until Jan. 1, the US could detain people without charge.

"The main point is that we don't know why they are there, why they were arrested in the first place," says a diplomat speaking anonymously because he is not authorized to speak with the media.

While many say that although Iraqi detainees could face inhumane treatment in local jails, the US should have transferred its captives to Iraqi authority much sooner.

"They have to be handed over to the Iraqi judiciary, knowing that the Iraqi judiciary does not respect their rights," says the diplomat.

For their part, Iraqi officials and their US counterparts contend that the system is not only ready to deal with processing US detainees, but they note that it already has experience processing the tens of thousands of detainees who have been handed over throughout the war. Since 2004, the US has released more than 85,000 captives. Last year it freed 18,600 prisoners and of those only 157 were arrested and returned to prison.

"We don't transfer unless [Iraqi prisons] meet the right conditions in order to transfer," says General Quantock, who says the US will not hand over detainees to an inhumane holding facility. Coalition forces have also begun training prison officials all the way from basic guards to wardens in the hopes of creating an ethical prison system that will outlast their presence.