Global Policy Forum

By Walter Pincus

In the past month, as a new security crackdown in Baghdad began, U.S. forces arrested another 1,000 Iraqis, bringing to 18,000 the number of detainees jailed in two U.S.-run facilities in that country. The average stay in these detention centers is about a year, but about 8,000 of the detainees have been jailed longer, including 1,300 who have been in custody for two years, said a statement provided by Capt. Phillip J. Valenti, spokesman for Task Force 134, the U.S. Military Police group handling detainee operations.

"The intent is to detain individuals determined to be true threats to coalition forces, Iraqi Security Forces and stability in Iraq," Valenti said. "Unlike situations in the past, these detainees are not conventional prisoners of war." Instead, he said, they are "diverse civilian internees from widely divergent political, religious and ethnic backgrounds who are detained on the basis of intelligence available at the time of capture and gathered during subsequent questioning." Valenti said 250 of those in custody are third-country nationals, including some high-value detainees.

Last month, military spokesmen in Iraq told The Washington Post that the United States held 17,000 detainees -- 13,800 in Camp Bucca in southern Iraq and 3,300 at Camp Cropper, outside Baghdad. One year ago, less than 10,000 Iraqis were in U.S. facilities in Iraq, but that figure has grown and could reach 20,000 by the end of this year, according to military contracting documents. As of last month, the Iraqi detention system contained about 34,000 detainees.

The initial decision to detain or release those arrested is made by a U.S. unit commander with the assistance of an Army lawyer, Valenti said. A file is made for each detainee that includes intelligence reports and any sworn statements and other evidence that supports the determination that the person is a threat.

At the U.S. detention facility, each case is reviewed by a Magistrate Cell. The decision of the Magistrate Cell is given to each prisoner in writing. Each case is reviewed after 18 months by the Joint Detention Review Committee, an Iraqi-U.S. panel. "Approval for continued detention beyond the initial 18-month timeframe requires joint approval from the MNF-1 commander [Multinational Force commander Gen. David H. Petraeus] and the prime minister of Iraq," Valenti said.

Noah Feldman, a New York University law professor who helped draft the Iraqi constitution, asked, "Pursuant to what law are we holding people who are not turned over to Iraqi courts?" Because they are not considered prisoners of war, he said, the United States must consider them in the "enemy combatant" category used to justify holding detainees at Guantanamo Bay, Cuba. Feldman also expressed concern about whether family members are informed about the detainees' identities and where they are held. If there is no notification, "disappearing people is a bad, bad practice," Feldman said.

On Feb. 13, Prime Minister Nouri al-Maliki issued a martial-law decree supporting the Baghdad security crackdown. The decree gave military commanders authority to conduct warrantless searches and arrests, monitor private communications and restrict public gatherings.

Sarah Leah Whitson, Middle East director at Human Rights Watch, said that under Maliki's declared martial law, it is up to the Iraqi government to deal with the detainees. "We don't see any legal authority for the U.S. to detain Iraqis or judge them under some tribunal system," she said. "If the U.S. exercises that power it's another symbol of occupation and not an obligation many in the military want to assume."

One nongovernmental organization expert who has studied the U.S. detentions in Iraq said, "There are a lot of differing opinions within Washington and Baghdad over how to handle these detainees, and the unspoken question is: What will happen if they are turned over to the Iraqis?" The expert spoke on the condition of anonymity for fear that a public statement could undermine the group's activities in Iraq.

Of the about 2,000 Iraqi detainees once held by the United States and turned over to the Iraqi Central Criminal Court, 1,747 have been convicted, Valenti said, with 80 percent of them receiving sentences of five years or greater, including the death penalty. Noting that U.S. forces have uncovered mistreatment of prisoners in Iraqi jails, the expert warned that "turning our detainees over to the Iraqis might lead to their torture and even death, so they are better off with us for the time being."