Global Policy Forum

By Alissa J. Rubin

America's largest detention facility is here in Iraq's southern desert, and it sits at the center of one of the most complex debates in the transition from American military rule to full Iraqi sovereignty: what to do with the 5,000 Iraqi prisoners whom the United States military considers a threat to the hard-fought and still fragile calm in Iraq? The latest draft of the security agreement between the nations, if passed, would make one change clear at least: in a drastic reduction of the United States military's power to control security in Iraq, American soldiers, acting on their own, would no longer be able to arrest insurgent suspects after Dec. 31. Under the proposed new rules, the United States military would need Iraqi permission to make arrests and then would have to turn suspects over to the Iraqi authorities within 24 hours. Less clear, however, is what will happen to those already in detention — about 17,000 people in all.

In theory, the United States would no longer have the right to continue to hold them. And with the United States seeking to slowly phase out its mission in Iraq, American commanders say they are eager to close down a system that has proved to be a drain on cash and, after the revelations of torture at Abu Ghraib, American credibility. "We're getting out of the detention business," said Brig. Gen. David Perkins, the spokesman for the American-led forces in Iraq. But, in a prime example of the broader complications in the United States transfer of responsibility to Iraqis, even that is not so simple: the Iraqi authorities acknowledge that they are not yet ready to take responsibility for all detainees. Prisons are not built. Guards have not been trained. The courts are jammed with cases. And so quiet negotiations alongside the framework of the larger security deal seem set to allow the United States military to continue confining some dangerous detainees at the Iraqis' request, while letting others walk free, an imperfect compromise that could also undercut some of the recent gains in security in Iraq.

Among the detainees still in American custody, about 5,000 are considered "dangerous radicals," said Brig. Gen. David E. Quantock, commanding general for Task Force 134, which oversees the detention system in Iraq. The United States will probably have to release about 4,000 of them when the military's right to detain people expires at year's end, he said. Most of the remaining 12,000 detainees are people who the Americans believe either were mistakenly swept up or played minor roles in the insurgency and are unlikely to return to it as long as they can find work. Under the proposed rules, the United States would be permitted to hold a detainee under only two circumstances: if there is enough evidence for an Iraqi judge to issue an arrest warrant, or if a suspect is already charged and awaiting trial. And the Iraqis would have to request that the United States continue to hold the person. At the moment, American officials say, they believe they will be able to meet that standard for only about a fifth of those they consider dangerous.

"On around 1,000, we'll get the evidence to charge them in the Iraqi court system," General Quantock said. "On 4,000, we'll have to work a hard guarantor program." A guarantor program is one in which a member of the community, like a tribal leader, agrees to sponsor the detainee, pledging that if he commits an offense, the tribal leader or another person in the community will go to jail for him. Military officials say it is not clear if they will be able to find sponsors for those who were truly bad actors. With the year-end deadline looming, the United States military has already been working hard to reduce the numbers in the detention centers, at times with unforeseen consequences that underscore both the violence still common here and the question marks hovering over the transfer of full authority to Iraqis. Several of those released have been killed, and the American military suspects that local leaders worried about instability in their areas carried out the killings.

The number of American-held detainees countrywide reached a high of about 26,000 in the fall of 2007. It has since dropped to about 17,000 detainees, who are being held at Camp Bucca and at Camp Cropper, the other American detention facility, which is on the vast military base attached to the Baghdad International Airport. An additional 2,000 detainees are to be released next month. The pace of release has caused alarm in some of the communities in which detainees have been returned, notably in Anbar Province, to the west of Baghdad. Gen. John F. Kelly of the Marines said that when he first began to allow detainees to be released into the province, local sheiks came to him deeply uneasy. "We went to the sheiks and said, ‘We got to release them,' and they were universally against it," General Kelly said. "They said, ‘There's no way to absorb them. The province has 40 percent unemployment and more underemployed.'

"So we worked out a reasonable number to release, which was 450 a month, and pretty soon they came to us and said, ‘My God, you don't know who you're releasing, You think you're releasing John Kelly, but really it's Abdul Kareem. He's an A.Q.I. murderous guy, but don't worry we took care of it.' " He was referring to Al Qaeda in Mesopotamia, or Al Qaeda in Iraq, the Sunni insurgent group led, to some degree, by foreign extremists. "They either told him to leave or, well, we've had, that we know of, 10 or 12 extrajudicial killings," General Kelly said. In recent days, confronted with the more immediate prospect of taking over responsibility for the American detention system, Iraqi politicians have voiced fears about the number of dangerous detainees and are demanding changes to the strategic agreement.

"The draft security pact says that the Americans will release all the detainees from their bases as soon as the pact is signed, which means they'll release criminals from Qaeda and militants," said Haider al-Abbadi, a senior Parliament member in the Dawa Party of Prime Minister Nuri Kamal al-Maliki. Mr. Abbadi and other officials say the Iraqis would like access to American intelligence in cases of potentially dangerous detainees so that they could issue arrest warrants and then either hold the detainees themselves or ask the Americans to continue to hold them. American officials say it is unlikely they would agree to requests for delicate intelligence, especially if it could reveal sources. Since the war began in 2003, the American military has sought to quell violence through what it calls "security detention" — holding without charge people believed to pose a potential risk to security. Under Iraqi law, like American law, there is no such thing as security detention. In most cases, people cannot be held unless there is a warrant for their arrest. As the system is transferred to Iraqi control, suspects will continue to be held only if the Americans have gathered enough evidence to charge them in Iraqi court. The others will be released — not immediately, but gradually so that large numbers of detainees are not dumped all at once into areas that may still be unstable, and, in theory, with guarantees from local tribal leaders.

Camp Bucca is scheduled to be closed down by the middle of next year. By January, General Quantock said, he hoped to start moving detainees to a new facility being built in Taji, a few miles north of Baghdad. When the Taji detention facility is finished, it will hold 5,600 detainees, and will be turned over to the Iraqis. It is not clear what will happen to Camp Cropper. In the meantime, the Americans are scrambling to gather enough evidence to ensure that as many of the potentially dangerous detainees as possible can be either held on warrants or charged under Iraqi law. But military lawyers say the task will be difficult. Many detainees were picked up during the height of the insurgency, two or three years ago, and while the military collected some evidence at the scene of their capture, witnesses have often fled or been killed and the capturing military unit is long gone. In the Iraqi courts, conviction often requires two witnesses to testify that they saw either a crime or a suspect's confession. Fewer than 10 percent of the cases tried in the Central Criminal Court of Iraq result in convictions, said a military lawyer with the Law and Order Task Force, which works with the courts. While there are other ways of satisfying evidentiary requirements, witnesses and confessions remain the most common.

Forensic evidence, one of the strongest forms of proof in the American trial system, remains arcane for many Iraqi judges, who view it as less reliable than a confession. That estimation is beginning to change, but acceptance will take time. "Forensics could show the guy is covered in TNT, and it would not be considered conclusive," General Quantock said. "Forensics is voodoo, so that's why we're going back through the cases, and back to get eyewitnesses." To prevent more extrajudicial killings of those released, the American military now provides the police, local sheiks and imams with pictures of the detainees before they are released. If the Iraqi authorities believe they can build their own case, the police go to court and ask for a warrant to immediately rearrest the suspect. "Now as we're releasing an increasing number of bad guys, they go to the court and get a warrant and then when he's released, he's taken in," General Kelly said. That is the pattern that General Kelly expects to see increase. There are still 3,000 men in Bucca who came from Anbar, and many are likely to be released into the community in the coming months. After the first 800 of them are let go, General Kelly said, "we're down to the bottom of the barrel, to guys that we shouldn't release."