Catch and Release in the Land of Two Rivers
National security officials are slowly realizing that its foes in the Islamic State in Iraq and the Levant (ISIL) look very familiar—embarrassingly so. They look an awful lot like the people in various mugshots dressed in identical, yellow, made-in-the-USA jumpsuits that were released in years past. Reports by numerous researchers revealed that ISIL’s top twenty leadership posts are almost entirely filled by former detainees held by the United States in Camp Bucca, Iraq from 2004-2009. Worse, a recent interview in The Guardian had a long time ISIL member gleefully point out how the group was able to recruit, network, and plan activities during this time period right under the noses of their American captors. How did these fighters get back to the battlefield so quickly, in such large numbers, and upend a situation in Iraq that in 2008 seemed destined for success? A productive detention program balances national security needs with adherence to the rule of law. Our programs did neither in Iraq, to the detriment of the security situation, and simply extended the suffering of the Iraqi people. Our obsessive and dogmatic adherence to the rule of law, along with an excessive deference to individual rights at the expense of human security, has influenced a poorly thought out detention policy that has released our enemies prematurely and without an intelligent integration back into society.
When the United States invaded Iraq in 2003, there was no intention of having a place like Camp Bucca. The fall of Saddam Hussein’s regime and the subsequent emergence of a resistance movement led the Bush administration to realize that coalition forces had to be entrusted with detainment powers for the purposes of maintaining security while the new Iraqi government built legitimate legal institutions basically from the ground up. This role was authorized by the 2004 U.N. Security Resolution 1546 which allowed the multinational security force to take “all necessary measures to contribute to the maintenance of security and stability in Iraq.” This was a very broad and supportive mandate that gave the multinational forces much leeway in developing security polices for the challenges developing in Iraq. Despite this incredible flexibility, the United States chose to execute a detention program that was less focused on protecting growing institutions than supporting principles of justice or security.
Camp Bucca served as the Theater Internment Facility for Iraq. The flow of detained personnel went something like this: tactical units would escort suspects with evidence packets containing sworn statements and pictures of evidence to their respective brigade holding cells. Almost a third of these detainees would be returned to the tactical unit for release due to a lack of evidence, with the remainder sent to Camp Cropper at Baghdad International Airport. Cropper served primarily as an in-processing site for detainees headed to Bucca, but also as a center for intelligence collection as a result of detainee questioning. Once questioning was considered complete by the intelligence authorities, the detainee was sent to Bucca for an indefinite period. Of those at Bucca, military lawyers identified and transferred select cases that contained strong non-classified evidence and Iraqi witnesses willing to testify for prosecution by the Iraqi Criminal Court. The rest of the cases, despite the very reasonable efforts of combat units playing detective, simply did not have prosecutable evidence for a civilian court case. The American society is conditioned to the role of science in our criminal investigations, but in Iraq there was no ability to collect fingerprint or DNA evidence and the legal statements were collected in a foreign language. Furthermore, the protection of witnesses was problematic or non-existent—a significant challenge given coalition efforts to establish the rule of law as a fundamental pillar of the nascent state.
Due to the screening at various levels, and the sheer logistical limitations that prevented an overload of the system, those that went to Bucca had a high chance of having been involved in political violence. By 2008, there were 18,000 detainees (of which 80% were Sunni). The high was 26,000 in 2007 and the low 7,000 in 2009. If these numbers seem high, consider that correctional officials in the United States supervise over 7 million people. As a matter of practice, the United States interpreted the U.N. mandate as a requirement to conduct periodic reviews of prisoners and to release them after a period of time served. According to one investigation, the U.S. military claimed in 2008 that 10 percent of its current prisoners had been in Bucca for over three years, 20 percent for two years, and the rest had been there for a year or less. What this meant in reality is that your average Bucca detainee was incarcerated for a year or two before being released, despite being involved in fairly serious violence against the coalition or Iraqi government. There were even examples of insurgents who were sent to and then released from Bucca multiple times—despite specializing in making roadside bombs. The impact of these individual releases would pale in significance to the rise in violence once Bucca was closed in 2009.
The Great Prisoner Release of 2009
These men weren’t planting flowers in a garden. They weren’t strolling down the street. This problem is both big and dangerous. And regrettably, the Iraqi government and the authorities don’t know how big the problem has become. — Col. Saad Abbas Mahmoud, Iraqi Police Chief of Garma (near Fallujah), as quoted by Anthony Shadid of the Washington Post in March, 2009.
The signing of the Status of Forces agreement, which had been negotiated by Condoleezza Rice and would keep U.S. forces in Iraq beyond 2008, stipulated that the United States would either turn over prisoners to the Iraqi government or release them. This move was in recognition of the Iraqi government’s full sovereignty. Once the SOFA was signed, the U.S. military struggled to train and advise Iraqi units while still being attacked by mostly Shia militia forces that were often protected by the government. Permission to target and detain militia members was almost always denied by Prime Minister Nouri al-Maliki, who had no reason to alienate a powerful political constituency. If there was an underlying factor that pushed the United States out of Iraq in the post-2008 period, it was this tortuous dynamic, which is well covered in a recent book by Joel Rayburn.
As the United States awkwardly recalibrated its presence in Iraq, the detainee turnover happened as scheduled and Camp Bucca was closed in 2009. Of the last 7,000 detainees, the Iraqi government requested that 1,360 be transferred to the criminal justice system for trial, and these prosecutions were supported by warrants and detention orders. Many of these were senior fighters from the Islamic State of Iraq (ISI), as ISIL was called at the time, who were later broken out of jail in 2012 and 2013. The rest, more than 5,700 detainees, were simply released during 2009. An unknown number of these men were destined to return to ISI, to execute operations as part of cells assembled during their time in Bucca. Some of these operations were directed at their close enemies, the Iraqi Sahwa or Awakening movement that had dealt such a setback to the then-al-Qaeda-linked ISI in 2007.
It is tempting to shrug and admit that this is just the way things are in war. Wars end, and prisoners go home, maybe to fight again. In reality, prisoner release is a highly contested element of war termination. Studies of other conflicts illustrate that most warring factions seek to establish a slow and orderly process of prisoner release to achieve concrete objectives. Societies in similar situations set three preconditions for the early release of prisoners. First, there needs to be progress toward a political reconciliation. While the Awakening movement did signal a move of a significant portion of the Sunni elite toward reconciliation with the government, it seems that both the United States and the Iraqi government overestimated this movement as much deeper than it actually was. The second condition is that there has been a partial cessation of violence. This had not happened in Iraq, even if relative violence had declined significantly in 2007. By 2009 violence had begun to increase again. Third, the population must support the release. This last fact is contestable. On the one hand, the release of Sunni prisoners has always been a rallying point for a Sunni community that is often victimized by rogue elements of the security forces and militias. On the other hand, the Awakening movement had conducted a skillful campaign to rally tribal allies and pacify militant members of their own tribes in order to dramatically reduce the violence in tribal areas, and the release of thousands of highly organized and committed ISI recruits from prison had a predictable impact on the Awakening groups’ ability to control Sunni areas beyond 2010.
Prisoner Releases and the Rebirth of the Shia Militias
The wild success of the Awakening movement in reducing violence in 2007 might have lulled the United States into a false belief that a mass release of Sunni prisoners would not impact the security situation, but the Americans had no illusions about two dangerous Shia militia commanders that it refused to release in 2009. In January 2007, Shia Special Groups conducted a raid on a vulnerable team of American advisors in Karbala that met initial success before it went bad during exfiltration. Chased by Iraqi police and American helicopters, Qais Khazali’s team executed four American paratroopers in cold blood and disappeared into the night. One of the raid leaders, Ali Musa Daqduq, was a Hezbollah member from Lebanon and a Quds Force operative. American special operations forces later tracked both Daqduq and Khazali down and detained them. A captured laptop detailed the extensive planning and Iranian support that the team secured in order to attack the Americans.
Due to our reluctance to unilaterally return the two to the United States for trial and supposedly bound by our dedication to the SOFA with the Iraqi government, both Khazali and Daqduq were eventually transferred to the Iraqi government. There was no surprise to the U.S. government when they were released by a Shia dominated Iraqi government that had little interest in prosecuting these war criminals—despite their own legal obligations to Washington to do so. Khazali was released in exchange for a British contractor in December 2009. Daqduq, who was not even an Iraqi, was the last detainee released by the United States at the end of 2011. He currently lives in the Green Zone working as an advisor to the Iraqi government.
Despite the best efforts of our special operations teams that risked their lives to apprehend these two senior Quds commanders, they are back on the battlefield today. Justice was not done for the families of those murdered American servicemen, which is a loss of faith between our political leadership and a group they frequently honor. More importantly, Khazali and Daqduq’s Asaib Ahl al-Haq militia has helped lead the revival of Shia militias in Iraq after the collapse of the Iraqi Army in Mosul and Anbar. Their appearance on the battlefield in lieu of, and sometimes in conjunction with, the Iraqi Army, has bestowed on them a legitimacy they had long been denied. The rise of Shia militias does not bode well for a future cohesive Iraq, as this War on the Rocks column predicted in September. The recent clearance of Jurf ah Sahkar of ISIL forces by Shia militias, including Khazali’s group, was documented by the Washington Post, as was their extra-judicial killings of Sunni males in the town. While the Sunni Awakening forces cooperated with the Iraqi police and Army to counter al-Qaeda-linked ISI militants, their interest in working with sectarian militias is highly doubtful. Any new Awakening strategy to help combat ISIL will be hard to get off the ground if Shia militias remain ascendant. This result is a highly predictable consequence of our current attitude toward the detention of our enemies, and a stubborn refusal to develop a coherent policy at the national level that balances our national security needs with the rule of law.
The United States is often unjustly blamed for many things that are wrong in this world, but the revitalization of ISIL and its incubation in our own Camp Bucca is something that Americans truly own. American slavish deference to the rule of law over other considerations has put the country in a situation where it has created (inadvertently in some cases, but predictably in others) an entirely new set of strategic problems. At what point do the human rights of those detained (even those that were wrongly detained) outweigh the rights of the Iraqi population to live their lives without terror? How does the Iraqi government conduct reconciliation when they have been under constant attack since 2009? American politicians can blame Maliki all they want, and most of it is deserved, but his paranoia was not always unjustified. The Iraqi government has many enemies, and the United States helped put many of them out on the street in 2009. Why? Was it convenience? Fatigue? Was the United States haunted by the ghosts of Abu Ghraib and Guantanamo? Answering these questions is not as important as breaking with the current attitude and constructing a better policy.
There is no doubt that the ISIL advance in Iraq has been contained and even rolled back in some places. A new Congress will be supportive of the president’s desires to help the Iraqi government take back more of its territory from a truly repulsive pseudo-state. Before we increase our level of involvement in Iraq’s internal affairs, however, this administration needs to bargain for a better set of operating rules than its predecessors achieved with a country that desperately needs our help. There are real and dangerous costs of our current legalistic approach, which has allowed too many of our enemies to return to the battlefield and cause terrific destruction to thousands of innocent Iraqis in their dual campaigns of ethnic cleansing. We need to look at a much more utilitarian approach to stopping this suffering and do our best to measure the consequences of releasing dangerous militants. Finally, we need to safeguard our national interests, something that has taken a back seat to a cautious and reluctant attitude toward detention operations. This messy business is not for the faint of heart, but we have important national interests that are suffering due to our incoherent polices that are constantly outmatched by the will and determination of our enemies. If you don’t believe me, ask the Iranian Quds Force leader—if you can find him somewhere on the frontlines in Iraq, UN sanctions be damned.
Craig Whiteside is a professor at the Naval War College, Monterey, where he teaches Theater Security Decision Making. These views belong to the author alone and do not reflect the views of the War College or the United States Navy.
CORRECTION: This article original said Qais Khazali was released in 2010, but he was actually released in December 2009. The text has been changed to reflect this.
Photo credit: Ingrid Taylar