Global Policy Forum

By Sameer Yacoub and Bushra Juhi

In the eyes of Iraqi justice, Yahya Ali Humadi is a free man. To the U.S. military, he's another of the detainees in yellow jumpsuits held at the sprawling Camp Bucca in southern Iraq.

Humadi- ordered released nine months ago after an Iraqi judge dropped all charges now spends his days in a legal limbo. It's one that has confronted and confounded thousands of other Iraqis since 2003 who have been freed by their nation's courts but remained in U.S. custody. "I don't know why the U.S. army brought him to an Iraqi court, if they intend to keep him for an unlimited time," said Humadi's lawyer, Samiya al-Baghdadi.

The American military, however, sees no contradiction. Commanders say the current international mandate in Iraq, as well as general codes of war, allow them to hold any prisoner until the detainee is no longer considered a threat to U.S. forces. Local law and court rulings do not apply, they add.These dual realities- freedom granted by Iraqi courts but continued detention by the Americans - have been faced by about 3,000 Iraqis since 2003 and stand as a sharp contrast between U.S. policies on the battlefield and Washington's appeals for Iraqis to build credible civic institutions. The differences could grow even more pronounced as Iraqi authorities move ahead with an amnesty program that was strongly supported by the White House as a step to reconcile Iraq's rival factions.

The amnesty rulings could offer an early exit for many of the 27,000 prisoners in Iraqi hands. They also could wipe the slate for hundreds of the roughly 22,000 detainees held by the U.S. military, which then must decide whether to abide by the decisions or ignore a formula that Washington applauded. The case of Humadi, accused of attacking American forces and other alleged acts, offers a brush with the bewildering gray area for Iraqis questioning why local rulings extend only as far as the gates of U.S. detention facilities. "The U.S. army's refusal to release my husband shows that the Americans do not care about how Iraqis suffer," Sundis Nimaa, Humadi's 34-year-old wife said between sobs. "They have brought my family down and they have separated the children from their father," she told The Associated Press. "They think they can do whatever they like because they have the upper hand in this country." Humadi's lawyer, al-Baghdadi, accuses Washington of rejecting the very legal system it helped forge. "The trial was fair and the judge followed the right legal procedure and even the appeal court approved the ruling," al-Baghdadi said.

The U.S. military does not comment on individual cases. It insists, however, that the detention system is authorized by a U.N. resolution under which the Iraqi government allows U.S. troops to detain people at will. U.S. military attorneys also say it complies with international laws covering warfare and was created in "the spirit" of the Geneva Conventions. These laws, the military says, are designed to take fighters off the streets, not determine guilt or innocence. "There are a large number that, after being acquitted, are released," said Maj. Gen. Doug Stone, commander of detainee operations in Iraq. "In some cases, and we are talking about a very small number, the compelling information that we have mandates that they still stay in our detention."

But rights groups have criticized U.S. detention policy as a misrepresentation of international law, which they say requires some form of legal process to detain someone. "There are basic issues of access to judicial review and access to due process rights that are not being met," said Joseph Logan, a researcher who specializes on Iraq for Human Rights Watch. After Saddam Hussein's fall in 2003, U.S. officials helped reorganize Iraq's judicial system and later applied intense pressure for the amnesty law, which was finally passed in February. The U.S. military regularly refers cases to Iraq's criminal courts if it thinks there is enough evidence for a conviction. But if Washington likes the system, it doesn't necessarily abide by it. U.S. troops burst into Humadi's home in Baghdad in April 2007, tossing stun grenades, searching the building and immediately arresting him. He was charged with illegally possessing weapons and attacking U.S. forces, though only one rifle was found in the home, al-Baghdadi said. Iraq law allows every home to have one assault rifle. U.S. military lawyers provided evidence to an investigating judge, who recommended a trial. But the three-judge tribunal that heard the case, and an appeals court, both ruled in July 2007 that the evidence did not support the charges. All the roughly 3,000 U.S. detainees whose cases were thrown out by Iraqi tribunals were kept in military detention, at least temporarily, until U.S. officers could make their own determination, said Navy Capt. Brian Bill, Stone's top military attorney. All of their cases are sent before a military review board within 30 days. It was not clear how many of those detainees are still in U.S. custody.

The amnesty law looms as a separate test between the U.S. military and Iraqi justice. So far the only known case of the Iraqi courts granting amnesty to a U.S. detainee involved AP photographer Bilal Hussein. He was released within 72 hours of the ruling in early April, but with a caveat from the military that he was not being freed because of the amnesty. "The decision to detain is based on an assessment of the threat the individual poses to the security of Iraq," Stone said in a statement at the time. "These determinations will continue to be made on a case-by-case basis and as a separate action from any determination of amnesty." Maj. Matthew Morgan, Stone's spokesman, said military lawyers have identified more than 400 other U.S. detainees who may also be eligible for amnesty. "We are reviewing those cases to decide if each detainee will remain in our custody as a security internee or be released," Morgan said. It is not known when — or if — the Iraqi courts will take up those amnesty hearings.

By contrast, government commissions have granted amnesty in 22,500 cases, said Abdul-Sattar Bayrkdar, a spokesman for the Iraqi Higher Judicial Council. But one person could be the subject of multiple cases, and it's unclear how many individuals have been granted total amnesty. Tracking individual cases through Iraq's jails is very difficult. U.S. detention centers take in and release dozens of people every day, creating a high turnover in a very complex bureaucracy. The military has released more than 6,000 people since January while maintaining an average detainee population of more than 24,000. Record-keeping in Iraqi courts, meanwhile, is shrouded in secrecy and technical shortcomings. The number of computers is limited, with few skilled workers to maintain databases, and the U.S. and Iraqi authorities do not always share vital information. In the U.S. detention system, different boards and committees make recommendations on each detainee at least every six months. The final decision, though, rests with Stone. He can accept or reject the recommendations made by the boards or committees. The military asserts that it is on solid footing under international law. But the wide-ranging authority claimed by the Pentagon is not in the U.N. resolution itself, and instead is included in a side letter from then Secretary of State Colin Powell.

Experts said it is so general that it allows for broad and differing interpretations. "The United States has spent a lot of time establishing the criminal court," said Logan of Human Rights Watch. "It is something they regard as a model judicial body for Iraq, and, in that case, if it's going to selectively ignore the court's rulings on freeing people who have been referred from (U.S. military) detention, it doesn't say very much about the institution the (military) had a major role in creating," he added. But Stone and his staff insist they are operating under the laws of war, which supplant standard human rights law. "The conditions on the ground require us to temporarily derogate from certain rights in order to ultimately lay the groundwork for civil society and the implementation of human rights law," Stone said.

The clock, meanwhile, is ticking on the U.N. resolution, which expires at the end of the year.U.S. authorities are trying to negotiate an agreement with the Iraqi government to maintain the current system. Iraqi officials, though, demand that all Iraqis held by U.S. forces be surrendered to their control. Stone said his unit is preparing to turn over all detainee operations to the Iraqi government as soon as possible. Falah Shanshal, a Shiite lawmaker from the bloc loyal to anti-American cleric Muqtada al-Sadr, insisted that "the government has to take over these prisoners and apply the amnesty." The amnesty is also extremely important to Sunnis, who make up most of the prisoners. "We are not pleased at all with the way the amnesty program has been managed so far," said Salim Abdullah, a Sunni lawmaker from the Iraqi Islamic Party. "There are large number of (U.S.) detainees who were not included." Meanwhile, Humadi remains in Camp Bucca indefinitely, and his wife, Nimaa, says: "I pray to God to save my husband and put an end to our long misery."