Wednesday, March 28, 2012

Baath Party Documents at Hoover to Remain in US?

There is potentially a significant development in the debate over the Baath Party documents at the Hoover Institution. Yesterday there was a posting on the listserv of the Middle East Librarians Association (and forwarded on the Iraq Crisis List by Chuck Jones) from John Eilts, the Curator for the Islamic & Middle Eastern Collection at the Stanford University Libraries, who reported:
I have learned from a reliable source that the captured archives of the Iraqi Baath party that were brought to the US (under what circumstances I do not know) will most probably stay in the US under and agreement with the foreign ministry. I really don't know any more at this time. They currently reside at the Hoover Institution on Stanford's campus.

Monday, March 26, 2012

Army DOCEX Document Posted Online

Public Intelligence has very recently posted online a "Draft" of the Department of the Army's "Document and Media Exploitation Tactics, Techniques, and Procedures, ATTP 2-91.5." It is marked FOUO and "Draft," but it is not classified.  The document provides practical guidance on DOMEX operations from collection to analysis and dissemination and discusses the Harmony database.  The level of detail seems largely comparable to the CMPC Standard Operating Procedures released by the DIA, but there are some unique details here.

A final version of ATTP 2-91.5 is not yet listed on the U.S. Army Publishing Directorate's site. Although even when it is, assuming it remains marked FOUO, it will remain annoyingly behind a password wall.  A Military Intelligence Doctrine Update by Major Michael A. Brake, in the September 2010 Military Intelligence Professional Bulletin (thanks Secrecy News) noted that it had "an estimated publication date in FY 2011."

Propaganda, Open Source Intelligence & the First Amendment

A fascinating amicus brief (thanks Lawfare) was filed last week in the appeal of the military commission conviction in Bahlul, a case which raises a variety of issues relevant to online propaganda videos, captured documents, open source intelligence, and the First Amendment.

As brief background, a central charge against Bahlul is that he created propaganda videos as part of an al Qaeda conspiracy to commit terrorism. The videos include the State of the Ummah from early 2001 (available online as part 1 and part 2, a translated transcript of the video, which was assigned DoD Harmony number AFGP-2002-905880, is available here). Bahlul was convicted and sentenced to life in prison after objecting to, and then boycotting, his military commission.  He used this sign in court to make his intentions clear:

On appeal, his lawyer argued that convicting Bahlul based on an online propaganda video meant he was "convicted on the basis of political speech in violation of the First Amendment."  In September 2011, the U.S. Court of Military Commission Review (CMCR) rejected this argument by holding that Bahlul, as a noncitizen acting abroad when he made the video, did not have First Amendment rights and that, even if he did, the video constituted an "incitement to imminent lawless action" and was "unprotected speech integrally tied to unlawful criminal activity."

The case has now been appealed to the D.C. Circuit Court of Appeals. The amicus brief linked above was filed on behalf of a group of former members of the U.S. intelligence community in support of Bahlul's First Amendment argument, but from an intriguing angle.  The brief argues that if the U.S. criminalizes the mere act of terrorist organizations posting propaganda videos or documents to the internet, it would adversely affect U.S. intelligence operations, which rely heavily on exploiting such videos and documents as "open source" intelligence.  It argues:
Failing to apply First Amendment protections to the propaganda video created by [Bahlul] limits the free flow of information and interferes with Americans' right to know. Furthermore, it does a grave disservice to our national security because of the chilling effect it would have on the generation and receipt of information relied upon by the Intelligence Community.
In relation to the State of the Ummah video at issue, the brief notes that it "expresses the motivations of and identifies key figures in al Qaeda" which is information that is "valuable open source intelligence" and that the "future dissemination of valuable information such as this should be encouraged and, at the very least, not prevented." The brief quantifies the substantial reliance on open source intelligence noting that an "estimated 80-90% of all collected U.S. intelligence comes from open sources."

How that intelligence is assessed and used is another issue. The Bahlul case is particularly noteworthy because it involves both "open source" evidence, such as the internet video, as well as a variety of captured documents, a couple of which I have previously posted (here and here).  The distinction between documents and media designed to be public, on the one hand, versus those that are private - but which are captured and exploited - on the other, is rich with complexity. This is true whether they are being used for intelligence operations, as evidence in court proceedings, or in archives for historical research.

In the preface to the Terrorist Perspectives Project, for example, the authors dismiss concerns over the possibility that open source "jihadi" material on the internet, on which their study relies, could be deliberate "disinformation" by arguing that "the enemy’s public discourse matches its private discourse as revealed in captured documents" and on the basis that if the "enemy" was attempting to "mislead 'infidel' analysts" the "enemy" would "inevitably mislead its own members."  Meanwhile, Col. Joseph M. Cox (no relation) in his fantastic 2010 article "DOMEX: The Birth of a New Intelligence Discipline" (thanks Secrecy News) argues that captured documents can be more reliable than some other sources of intelligence:
The true significance of DOMEX lies in the fact that terrorists, criminals, and other adversaries never expected their material to be captured. The intelligence produced from exploitation is not marked with deception, exaggeration, and misdirection that routinely appear during live questioning of suspects.
Yet the level of sophistication, or lack of sophistication, attributed to "jihadists," "terrorists," and "al Qaeda" varies widely (and, in my view, dangerously).  One minute "terrorists" are accused of using sophisticated counter-interrogation techniques and communicating with each other via hidden messages encrypted in pornographic videotapes using steganography, the next minute "terrorists" are viewed as failing to prepare even for the highly foreseeable possibility that their documents could be captured.  An assumption that captured documents from any source are not potentially seeded with misinformation or that custodians of those documents were not utilizing information security practices that could render the pool of documents captured either non-representative or outright misleading seems suspect.

For historical perspective, see Harold Deutsch's 1995 article "The Matter of Records" in 59 Journal of Military History 135, which provides a series of entertaining historical examples of captured records and public documents that are either unreliable or intentionally deceptive.  Deutsch relates, for example, a discussion with someone whose correspondence was included in the U.S. State Department's publication of captured documents from the German Foreign Office Archives, who advised that his letters often "amounted to a code" which indicated to the recipient that "the letter meant the exact opposite to what seemed to be written" and that, if he had been given notice of the U.S. intention to publish the letters, he could "have given the Americans the code" to be "included in a footnote for the enlightenment of readers." See also Operation Mincemeat.

Finally, while we await the Bahlul decision from the D.C. Circuit, it is worth noting that the CMCR's September 2011 decision, while denying Bahlul First Amendment rights, helpfully clarified that its decision did "not adversely affect the rights of U.S. citizens" to view the propaganda video on the internet, which may be a relief for U.S. citizens that clicked on the video links at the top of this post (whew!) - according to Danger Room, however, if French President Sarkozy has his way, the same may not be true of French citizens in the future.

Tuesday, March 20, 2012

Read this Book: "The Struggle for the Files"

"The Struggle for the Files: The Western Allies and the Return of German Archives after the Second World War" by Astrid M. Eckert, a history professor at Emory, is now available from Cambridge University Press (as well as Amazon).  This is the definitive work on the return of the German archives seized by the Allies during WWII and is a must read for anyone interested in the history of captured documents. 

You don't have to take my word for it.  In his 2006 review in Central European History of the German version - Kampf um die Akten. Die Westalliierten und die Ruckgabe von deutschem Archivgut nach dem Zweiten Weltkrieg - the Joint Historian for both the State Department and the CIA, James C. Van Hook, called it a "study of profound importance to the historiography on twentieth-century Germany" and "truly a remarkable achievement." He ended by stating: "One may only hope that Eckert's work gets the widespread attention it deserves. This is one of the best books I have read in the past few years."

From the publisher: When American and British troops swept through the German Reich in the spring of 1945, they confiscated a broad range of government papers and archives. These records were subsequently used in war crimes trials and published under Allied auspices to document the German road to war. In 1949, the West Germans asked for their return, considering the request one of the benchmarks of their new state sovereignty. This book traces the tangled history of the captured German records and the extended negotiations for their return into German custody. Based on meticulous research in British, American, and German archives, The Struggle for the Files highlights an overlooked aspect of early West German diplomacy and international relations. All participants were aware that the files constituted historical material essential to write German history and at stake was nothing less than the power to interpret the recent German past.

Saturday, March 17, 2012

La Prensa on the Captured Noriega/Panama Files

Aristides Cajar Paez has an article today in La Prensa called "Los archivos del miedo" discussing the seizure of documents from Panama during Operation Just Cause in 1989, the debate over them in the U.S. case against Manuel Noriega, and the fact that the documents remain in U.S. military custody.  The article cites this blog and the inventories of the seized documents posted here.

Friday, March 16, 2012

WashPo Says Bin Laden Docs Will Soon be Public

David Ignatius states in Washington Post piece called "The bin Laden plot to kill President Obama" that he was "given an exclusive look" at some of the "documents taken from bin Laden's compound by U.S. forces on May 2, the night he was killed" by "a senior administration official."

Ignatius then goes on to state that the documents "have been declassified and will be available soon to the public in their original Arabic texts and translations."  Unclear if this is referring only to the specific documents relevant to a supposed plot against the President that are the subject of his article or the larger collection of seized bin Laden documents, but this is significant news either way.

Thursday, March 15, 2012

Exploiting GTMO Detainee Letters Home

Based on public court filings and Wikileaks documents purporting to be military reports on Guantanamo detainees, the government has apparently created a rather extensive collection of documents for intelligence exploitation comprised of letters between detainees and their families.

Like groups of captured documents from the DoD's Harmony database with codes like AFGP, CMPC, ISGQ (which according to the DoD's SOP identifies where the document was processed) the "captured" letters home are identified with GUAN. This letter home from a detainee named Mahmud that reported he was "in good health" and asked the redacted recipient to give his "regards to my father, brothers, and all people," for example, became GUAN-2006-T00769:

Of course, correspondence of prisoners or detainees during war have always been subject to censorship and monitoring (communications with a detainee's attorney is a different issue).  The image below, for example, is a letter from a Union POW at Fort Delaware from 1864 stamped "Prisoner's letter" and "Examined" (for other historical images of POW letters see herehere, and here). According to the Smithsonian's National Postal Museum:
Federal prisons . . . required Confederate prisoners to adhere to special rules in regard to their letters. A prisoner's letter had to be enclosed in an unsealed envelope and placed in an outer envelope. It was then sent to a designated location, where the outer envelope was opened, destroyed, and the enclosed letter carefully examined. If approved, the letter was sealed, marked "Examined", and placed in the mail at a nearby post office.
Smithsonian National Postal Museum

This is also consistent with Article 71 of the 1949 Third Geneva Convention which both requires that POWs be allowed to send mail and also contemplates censorship of that mail by the Detaining Power.
Prisoners of war shall be allowed to send and receive letters and cards. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war, the said number shall not be less than two letters and four cards monthly . . . . Further limitations may be imposed only if the Protecting Power is satisfied that it would be in the interests of the prisoners of war concerned to do so owing to difficulties of translation caused by the Detaining Power's inability to find sufficient qualified linguists to carry out the necessary censorship. 
In the case of the GTMO letters, the exploitation of the letters for possible (or at least perceived) intelligence value appears to be remarkably extensive.  Some of the conclusions drawn, however, seem like a stretch or of questionable significance.

Take Mahmud's letter at the top of this post, for example. The Wikileaks GTMO report on him at p. 2 states that "through exploitation of a letter he sent home" (same letter, compare GUAN number in footnote 2), the intelligence analysts added "al-Halali" as a additional "alias" of Mahmud.  The significance of this new "intelligence" is then immediately undermined in a footnote stating that"[i]nitial research on this alias provided no additional information. Al-Halali is [a] family name more commonly associated with Yemeni citizens." As the report itself notes, Mahmud "claims" to be Yemeni and his father is Yemeni. The name "al-Halali" most likely, therefore, would seem simply to be an indication that his family originally came from Halal, Yemen consistent with the Arabic name conventions in the DIA's own guidance (e.g., Al-Adani means from Aden, Yemen) rather than some nefarious "alias" he accidentally revealed to his captors in a letter home.

According to another Wikileaks GTMO report, GUAN-2007-A00595, GUAN-2007-T03659, and GUAN-2007-T04158 are letters between a current GTMO detainee from Yemen named Sabri and a former GTMO detainee who had earlier been repatriated back to Kuwait named Abdul-Aziz.  Oddly, this correspondence is listed as a reason for continuing to detain Sabri because Abdul-Aziz allegedly had ties to al-Qaida when Abdul-Aziz was in Afghanistan years ago.  It invites the question, of course, if Abdul-Aziz was so dangerous that merely corresponding with him is a reason for continued detention of Sabri, why was Abdul-Aziz allowed to leave GTMO in the first place?  It also leaves out the additional information that when Abdul-Aziz was sent back to Kuwait, he was actually charged in Kuwaiti court for belonging to al-Qaeda, but was then acquitted of all charges.

Other exploited family letters feel a bit like, well, exploitation.  In another Wikileaks GTMO report, for example, document GUAN-2006-A02327 consists of a letter from a detainee's wife writing to her detained husband "discussing financial difficulties."  The intelligence analysts speculate coldly that this personal letter could be relevant to whether the detainee might have years earlier received money from someone alleged to be involved in terrorism.

Despite its potential shortcomings as a source of intelligence and its sometimes unseemly characteristics, this database of correspondence could actually one day become a unique set of archives for historians studying the GTMO detentions -- if, and when, GTMO becomes solely a part of the past.

Wednesday, March 14, 2012

Own a Piece of Captured Document History - Noriega's Business Card

Following up on an earlier post on Saddam's sword and war souvenirs, there is only about 24 hours remaining in an auction on for a "General Manuel Noriega original business card in great condition - This is not a copy."  Minimum bid is $49.99.

The issue of Gen. Noriega's business cards have a long history.  Not long after the December 1989 U.S. invasion of Panama, news stories began popping up about Noriega's business cards being sold in California for $10 a piece.  A Jan. 31, 1990 piece in the Ellensburg Daily Record, for example, stated that "Entrepreneur Joel Peterson" was selling business cards and stationary obtained from "the general's desk in Panama City." His brother, Army Sgt. Mark Peterson, reportedly "had been sent to Noriega's headquarters in the mop-up operation after U.S. troops stormed the compound."  Sgt. Peterson reportedly "gave his brother a signed, hand-written note certifying 'that these cards belonged to General Manuel Noriega and were personally acquired by myself at Noriega's office . . . on 22 Dec. '89 during operation 'Just Cause.'"  Morever, the article stated that according to Sgt. Peterson:
An Army policy announced during the Panamanian action allowed soldiers to take souvenirs as long as they were not weapons, drugs or anything that might have been used as evidence in criminal proceedings.
This did not escape the attention of Noriega's lawyers who had already been trying to ensure that the Government was preserving the documents seized in Panama for possible use in his defense to criminal charges in Miami.  On February 2, 1990, Noriega's lawyers filed this "Motion for Inventory and Return of Stolen Property" arguing that "soldiers ransacked General Noriega's residence and stole numerous articles of personal property belonging to General Noriega," that "one Joel Peterson, brother of Sergeant Mark Peterson, is selling stolen business cards of General Noriega in Southern California," and that this was apparently permitted by U.S. Army policy.

"Conduct of this nature, by the United States Army," the motion continued, "is reminiscent of ancient times when Attila the Hun and barbarians sacked and burned cities and later divvied up the booty among themselves."

The government's response in opposition to the motion denied that any property had been "stolen" and noted that the only specific item mentioned in Noriega's motion was "business cards, items which by their nature are meant to be distributed" and that "it is difficult to image what if any evidentiary value applies to the business cards."  In a classic U.S. government argument, the response stated that the U.S. "submits that to the best of its knowledge, none of defendant's property has been stolen" (emphasis mine) and that "[i]nsofar as any items may have been removed from those locations with the government's knowledge, they were removed in compliance with applicable military regulations and directives" without ever addressing whether such regulations or directives, as Sgt. Peterson and the original motion had claimed, allowed individual soldiers to take Gen. Noriega's property as war souvenirs.

More pressing issues soon overtook the Noriega case and the motion was later denied by Magistrate Judge Turnoff without comment in July 1990.  With time, however, the allegations in the motion have found additional factual support, not only in the ongoing auction, but in numerous stories over the years.  As just one example, see this account involving not only a business card and stationary, but even a "reproduction of an ancient map of the world produced on fabric" that a soldier "found in Noriega's office while his unit emptied the Panamanian leaders files" which later had "an honored spot on the wall" of that soldier's "Englewood home."  Another one of Noriega's business cards ended up, perhaps more appropriately, in the Business Card Archives founded in Iowa by Walter Day.

Tuesday, March 13, 2012

Turkish Armed Forces To Return Seized Documents to Turkish Government

I wanted to briefly highlight an interesting piece in Today's Zaman from last week entitled "General Staff to return documents seized in coup times" which involves the return of seized documents from one part of the Turkish government to another.  The article reports that the Turkish Armed Forces are "aiming" to return documents seized "from the Office of the President, the Prime Ministry and Parliament during the May 27, 1960 and Sept. 12, 1980 military interventions" to "their rightful owners." The piece notes that
In addition to key information about the events that occurred during the two coups, the archives to be returned include documents on the Dersim massacre of 1938 and the 1915 killings of Armenians under the Ottoman administration. There are thousands of official documents, orders and images among the archives, which were seized from various institutions.
The article states that the documents are expected to be delivered "by Sept. 12, 2012" and that "[h]istorians and researchers will be able to access these documents for research once they have been returned."

Why are they doing this now?  The article notes that the Turkish Parliament is "preparing to establish a new commission to investigate Turkey's past military takeovers at the request of Prime Minister Recep Tayyip Erdogan" and that the return of the documents "is also part of a wider project by the military to consolidate its archives." Given the reference to some of the documents including information relevant to the "1915 killings of Armenians under the Ottoman administration," however, I also wonder whether the timing could also be related to the recent controversy between Turkey and France over a proposed French law criminalizing the denial of the Armenian genocide.  In late February, the French Constitutional Council struck down the draft law, but, as the N.Y. Times reported,
controversy over the bill is likely to persist, however.  President Nicolas Sarkozy, who backed the legislation, vowed to submit a new bill with revised language.  He has in the past indicated that he would push to see that denial of an Armenian genocide is made a crime even if the council ruled against the draft law.
Finally, an aspect of the article that might raise a red flag for archivists is the repeated references to the armed forces "reorganizing" and "re-categorizing" the documents prior to returning them, which may present concerns about the preservation of context.

Monday, March 12, 2012

Actually, That Might be Saddam's Sword After All

Spencer Ackerman over at Wired's Danger Room had a great piece last week called "Sorry, That's Not Really Saddam's Sword You're Buying" which strongly questioned the provenance of a sword auctioned off recently in New Hampshire that purportedly belonged to Saddam Hussein.  Based on a closer look at the evidence, however, it appears just as likely that the sword was legitimate.  The dirty little secret is that the DoD's practice of permitting war trophies is alive and well.

The central thrust of the Danger Room piece relies on the unquestioned assurance of a spokesperson for U.S. Army forces in the Middle East that "[i]f this were an actual Saddam Hussein sword, it would be considered a museum piece and turned back over to the Iraqi government."  This assertion, unfortunately, is false both factually and as a matter of U.S. law and policy.  Need some evidence?  See, as just one example, this exhibit entitled "Saddam Hussein Sword and Rifle" that features an authentic sword captured by the 4th Infantry Division that is on display not in an Iraqi museum, but rather at the U.S. National Infantry Museum in Columbus, Georgia.

National Infantry Museum "Hussein Artifacts" "Exhibit: 'Saddam Hussein Sword & Rifle'"
As noted in a military report on legal issues related to Operation Iraqi Freedom, designating "enemy material seized on the battlefield" as "historical artifacts" of U.S. combat operations is standard procedure.  The Army's Chief of Military History, in fact, "deploys military and civilian personnel" as recovery teams that are "responsible for identifying, collecting, registering, and returning to the United States all significant historical artifacts, in coordination with unit commanders." This is entirely consistent with the auction house description of the Saddam sword sold in New Hampshire which states that the sword was obtained from Saddam's office within a military command complex in Baghdad and was initially sequestered for possible military history use by the 126th Military History Regiment, which, as noted here, "crossed the berm from Kuwait into Iraq" in March 2003.

Moreoever, as I explained in an earlier post on possible criminal charges in the U.K. for importing a buttock from a toppled statute of Saddam, at the time of the invasion the U.S. was not treating property that normally might qualify as museum pieces - such as statutes, paintings, and, perhaps, ceremonial swords - as protected cultural property when that property belonged to, or glorified, Saddam or the Ba'ath Party.

Ackerman's Danger Room piece also questioned the authenticity of the sword as an individual "war souvenir."  His incredulity is understandable given the reasonable assumption, also implicitly encouraged by the Army's spokesperson, that individual war trophies are a part of the uncivilized past.  In relation to the 2003 U.S. invasion of Iraq, the DoD specifically and explicitly pushed this view as part of the larger narrative that the U.S. came to liberate, rather than subjugate, Iraq (see, e.g., the American Forces Press Service,"No War Trophies Allowed from Iraq, Afghanistan" from Dec. 2003).

What the DoD did not publicize, however, was that in February 2004, less than a year after the Iraq invasion, the Secretary of Defense quietly implemented a 1994 law (codified at 10 U.S.C. § 2579) which "recognize[d] that battlefield souvenirs have traditionally provided military personnel with a valued memento of service in a national cause" and permitted individual servicemembers to retain certain items, with proper approval, as souvenirs.  The 1994 law followed an earlier military assessment of Operation Desert Storm that noted: "Only sex seems to arouse as much passion in ordinary human beings as does the lust to acquire war trophies." The details of the 2004 implementation authority for the 1994 law is buried in a footnote in the military report mentioned above:

Once again, this is consistent with the auction house description which states that, after the sword's seizure for possible military history purposes and after the sword was subsequently "never claimed by the U.S. government," the seller, who was a military historian, "requested and was granted permission to take the sword home as a souvenir."

The belated 2004 implementation of the 1994 war souvenir law may also help explain a final point noted in the Danger Room piece.  The auction house description states that the DoD form documenting the sword as a souvenir has the date "March 9, 2003" which arguably undermines its authenticity given that the invasion had not yet started then.  The chance that this is a simple date error for the date of the sword's initial seizure, however, becomes more plausible with the added information that the time at which the form was filled out would not have been contemporaneous with the seizure. The form would have been filled out no earlier than February 2004, or almost a year later.  The date that was intended was most likely April 9, 2003, the day on which Saddam's statute was iconically pulled down in Firdos square.

Of course, this is all just speculation without being able to consult and investigate the actual documentation for the auctioned sword and online auctions are clearly awash with Saddam memorabilia of suspect authenticity. The simple point, however, which may be shocking and hard for some to accept, is that U.S. law and policy would not necessarily preclude individual ownership of captured Iraqi property as war souvenirs nor would it necessarily compel the return of even museum-worthy pieces to Iraq.  If the Army wants to claim something different, they can tell it to the Marines.

Friday, March 9, 2012

A Captured Document Turducken

I recently came across an odd exhibit in a military commission filing that consists of documents captured by the United States that, in turn, consist of copies of seized U.S. documents.  The exhibit, which is from the military commission in Bahlul, is a collection of captured documents with Harmony number AFGP-2002-800755. That captured document file consists of a collection of published copies of U.S. classified documents seized from the U.S. Embassy in Tehran in 1979.  As described in the exhibit:
The publicly filed exhibit contains only the cover page and a second page on which there was handwriting rather than duplicates of the whole collection. On the cover page, however, the Arabic numerals indicate "39-40" which appears to be volume numbers for the published U.S. embassy papers. Volumes 39 and 40, which are available elsewhere online here and here, do primarily contain what purport to be seized U.S. Embassy records related to Kuwait.

Thursday, March 8, 2012

Conference Report on Captured Records & Al-Qaeda

The Homeland Security Digital Library includes among this week's "critical releases" a copy of the Conference Report on last year's joint Conflict Records Research Center (CRRC) - Johns Hopkins University conference "Ten Years Later: Insights on al-Qaeda's Past & Future through Captured Records." The Report has also been available on the CRRC's website.

In connection with the Conference the CRRC also publicly released 12 records with full English translations here.  The index to CRRC's larger "Al-Qaeda and Associated Movements" collection is available here.

Reenactment of Returned Korean Royal Archives

Following up briefly on a earlier post about France's return (as a loan) of Korean royal archives (Uigwe) that were seized by French forces in 1866, the Korean Times has a piece on a reenactment at the National Museum of Korea of one of the Joseon-era royal weddings depicted in the returned Uigwe.

The Times article has a number of pictures of the elaborate ceremony by Shim Hyun-chul and the following description:
For a court wedding, the Joseon Kingdom employed several thousands of people over several months to organize the procedure of six aspects of the wedding ceremony. The procedure comprises "napchae," "napjing," "gogi," "chaekbi," "chinyeong," and "dongrae." For instance "napchae" indicates sending a messenger with a formal proposal letter to the future queen, while the "chaekbi" step is the crowing of the future queen and "dongrae" means the consummation of the royal marriage.

Wednesday, March 7, 2012

Possible Contempt Sanctions Against Russia over Jewish Archives

An important new development in the Chabad v. Russian Federation case.  Contempt sanctions against Russia for failing to comply with a court order to hand over the historical Jewish archive and library (often called the Schneerson Collection) may be forthcoming.

The plaintiff Chabad (a religious organization whose full title is above) requested in a filing on Monday that the U.S. District Court in D.C. hold the Russian Federation (along with the Russian State Library and the Russian State Military Archive) in contempt. Chabad also asked the court to "issue a significant daily or weekly monetary sanction" against Russia for "refusing to comply with the Court's judgment."

The U.S. case began in late 2004, but the larger controversy has been going on for decades. Since this is the first significant event in the case during the life of this blog, some very brief (and unavoidably oversimplified) background:

At issue is both a Library dating back to 1772 that "consists of more than 12,000 books and 381 manuscripts" and also an Archive consisting of "over 25,000 pages of handwritten teachings, correspondence, and other records."  The Library, which had been stored in a private warehouse in Moscow, came into Russian possession following the 1917 Bolshevik Revolution.  The Archive was seized in Poland by the Nazis following their 1939 invasion and moved to a "Gestapo-controlled castle in Germany."  In 1945, as described by the court, "the Archive was taken by the Soviet Army as German 'trophy documents' or 'war booty'" and transferred to the Russian State Military Archive.

A taste of the subsequent history as briefly summarized in an earlier court opinion (cites omitted):
Though remaining in Soviet possession through much of the 20th century, in the early 1990s a series of rulings by Soviet tribunals determined that the Library and Archive were not the national property of the Soviet Union and ordered that the collections be returned to plaintiff. Before the return could be accomplished, however, the Soviet Union was dissolved and the new Russian Federation nullified the prior orders. As a result, both the Library and the Archive remained in Russian possession.
In the ongoing U.S. case, Judge Lamberth held in 2006 both that Nazi Germany's seizure of the Archive, as private property, "clearly violated international law" and that "the Soviet Army's 1945 seizure and appropriation of the Archive from its Nazi captors as spoils of war was also a taking in violation of international law," conclusions which allowed the court to assert jurisdiction over the Russian Federation (which would otherwise enjoy sovereign immunity).  Judge Lamberth initially held that the same did not apply to the Library, but that ruling was later overturned by the D.C. Circuit.  The Russian government argued (see Russian Embassy submission beginning on p. 60) that the collections constitute an inalienable part of its cultural heritage.

In 2009, with the substantive dispute over the disposition of both the Archive and Library finally before the court, the Russian Federation suddenly informed the court that its further participation in the case was "fundamentally incompatible with its rights as a sovereign nation" and asserted that "this Court has no authority to enter Orders with respect to the property owned by the Russian Federation . . . and the Russian Federation will not consider any such Orders to be binding on it."

Judge Lamberth therefore eventually entered a default judgment against the Russian entities in July 2010, ordering:

After Russia failed to comply, Judge Lamberth issued an additional order in July 2011 asking Russia to show cause why it should not be held in contempt and provided a final 60 days for compliance. When the 60 days expired, Chabad voluntarily sought delays of court enforcement (here and here) in order to "create an atmosphere conducive to settlement negotiations."  According to Monday's filing, however, attempts at settlement were unsuccessful:
Chabad has made a good faith effort to negotiate with Defendants, including multiple meetings at the Russian Embassy in Washington, D.C.  Unfortunately, Defendants have not complied with the Court's judgment. Nor have Defendant's agreed to return any portion of the Collection as a result of diplomatic efforts or the foreign sovereign's generosity. On January 13, 2012 Russian Culture Minister Alexander Avdeyev announced at a press conference that "A constructive dialogue over the Schneerson Library will be possible only after the U.S. court reverses its decision and the claimant withdraws its lawsuit." Defendants' position is unacceptable.
Chabad, in short, has invited Judge Lamberth to act on his earlier threat to impose contempt sanctions, which, given Russia's continued nonresponse to the court's orders, is now more than ripe.  Aside from a piece in the Blog of Legal Times, I haven't seen any other press on this new development.  Something tells me that will change if, and when, Judge Lamberth lowers the hammer.

For a much more in-depth background on the case and the history of the controversy see Michael J. Bazler and Seth M. Gerber, "Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned," 32 Loyola L.A. Int'l & Comp. Law Rev. 45 (2010), available in full-text here.

Tuesday, March 6, 2012

Gawker Piece on the Captured Iraqi Doc Dump

In my post yesterday on the 2006 internet release of thousands of "Iraqi Freedom Documents," I noted near the end that one could "juxtapose statements by certain politicians in their advocacy for the wide release of the Iraqi documents alongside their more recent condemnations of Wikileaks for creating some strikingly similar diplomatic and national security issues," although I did not do so.  John Cook over at Gawker, however, read the post and ran with it in a piece this afternoon called "Santorum's Wikileaks."

GCC on Iraq and Kuwait's National Archives

According to a brief piece from Kuwait's News Agency, KUNA, the Gulf Cooperation Council (GCC) issued a communique following a meeting on Sunday that "called on Iraq anew" to return Kuwait's missing national archives and "comply with all UN resolutions related to the former regime's invasion and occupation of Kuwait in 1990-91."  The GCC also reportedly "urged the UN and relevant organizations to contribute to helping Iraq honor its international obligations" while also reasserting the GCC's "commitment to the sovereignty, independence and territorial unity of Iraq."

Monday, March 5, 2012

The Legacy of the 2006 "Operation Iraqi Freedom" Doc Dump

This post briefly revisits some of the highlights from the U.S. government's remarkable act of uploading thousands of captured Iraqi documents (the so-called "Operation Iraqi Freedom Documents") to the website of the U.S. Army Foreign Military Studies Office (FMSO) from March until November 2006.  

The drive towards this unprecedented doc dump arose in earnest in late 2005 and early 2006 when the continuing public debate over the justifications for the 2003 Iraq invasion turned towards the possibility of untapped evidence in the captured documents from Iraq.  Could they contain, for instance, "smoking gun" evidence of links between Saddam and al-Qaeda?  Stephen F. Hayes at the Weekly Standard, for example, had an impressive series of pieces during this period on his attempts to obtain access to some of the captured Iraqi documents both via the Pentagon press office and via repeated FOIA requests. He also covered growing calls in Congress for the release of the material.  See in particular his "Where Are the Pentagon Papers?" in November 2005, "Down the Memory Hole: The Pentagon sits on the documents of the Saddam Hussein regime" in December, and both "Saddam's Terror Training Camps: What the documents captured from the former Iraqi regime reveal -- and why they should all be made public" and "Read All About It: Prewar Iraqi documents are of more than academic interest" from January 2006.

In March 2006, both then-Rep. Pete Hoekstra and then-Sen. Rick Santorum took action by introducing nearly identical bills in the House and Senate that required the "Director of National Intelligence to release documents captured in Afghanistan or Iraq during Operation Desert Storm, Operation Enduring Freedom, or Operation Iraqi Freedom."  Those bills were H.R. 4869 and S. 2408, respectively.

The mere introduction of the bills proved to be sufficient. Shortly thereafter, the Office of Director of National Intelligence announced the initial public release of captured documents and briefly mentioned a "risk management approach" designed to "minimize the chance of releasing information which may damage U.S. national security, the privacy of U.S. persons or innocent foreign nationals":

As a N.Y. Times headline accurately summarized soon thereafter "Iraqi Documents Are Put on the Web, and Search Is On."  The Times quoted Rep. Hoekstra saying he wanted to "unleash the power of the Net" and the doc releases certainly did inspire a lot of activity. Several bloggers began preparing their own translations and conclusions (see, e.g., the translations posted here).

The Times stated that the "growing crowd of bloggers and translators" were "almost exclusively on the right" politically and they were looking for evidence of WMD or ties between Saddam and al-Qaeda.  It seemed, however, that there was something for everyone in these documents. Juan Cole at Informed Consent, who wrote that the "Right Blogosphere was Scammed by Bogus Document Dump" and stated that the "notorious liar, Stephen Hayes of the Weekly Standard led the charge," later utilized another released document himself which he argued indicated that, despite claims that Abu Musab al-Zarqawi was "a client of Saddam," Saddam had actually been trying to arrest Zarqawi "as a danger to the Baath regime" (a copy of the document on which he relied, ISGZ-2004-19920, and a government translation are here and here).

Like the release of Wikileaks cables years later, diplomatic consequences from the release of the Iraqi documents soon, and predictably, followed. ABC News, for example, asked "Did Russian Ambassador Give Saddam the U.S. War Plan?" in reliance on, among other documents, CMPC-2003-001950 (the original is available here) which it summarized as
a handwritten account of a meeting with the Russian ambassador that details his description of the composition, size, location and type of U.S. military forces arrayed in the Gulf and Jordan. The document includes the exact numbers of tanks, armored vehicles, different types of aircraft, missiles, helicopters, aircraft carriers, and other forces, and also includes their exact locations. The ambassador also described the positions of two Special Forces units.
In April 2006 the Oversight Subcommittee of the House Committee on International Relations held an informative hearing called "The Iraqi Documents: A Glimpse Into the Regime of Saddam Hussein" in which the released captured documents were discussed at length.  The hearing included an interesting back-and-forth debate about the released documents regarding Russia between Rep. Rohrabacher who stated that he thought
it is a great idea for us to disclose all that information about Russians' involvement with Saddam Hussein. In fact, we should disclose all these documents . . . we shouldn't be trying to protect the Russian intelligence from some sort of embarrassment whatsoever. 
and Rep. Schiff who responded that
In terms of disclosure of documents, that is wonderful, but it is not to protect the Russians that I am having a concern about this. If this information turns out to be patently false, then we have needlessly damaged our relations with Russia. That hurts us. That doesn't just hurt the Russians. We want Putin's help right now on nonproliferation with Iran. . . . It is not worry about Russian sensitivity. It is worry about our own national security interest.
The hearing also featured a memorable, and prescient, line from Gen. Anthony Cucolo: "a document is a dangerous thing."

As documents were released, the DOD Harmony database of captured documents was apparently annotated accordingly.

As time passed, the release of the documents on the FMSO portal increased. According to a footnote in the excellent recent book "The Saddam Tapes," the government uploaded a total of "approximately eleven thousand records" to the internet.

In early November, however, the experiment ended abruptly.  On November 3, 2006 the New York Times reported "Web Archive is Said to Reveal a Nuclear Primer." The article noted that the web site had posted documents "that weapons experts say are a danger themselves: detailed accounts of Iraq's secret nuclear research before the 1991 Persian Gulf War. The documents, the experts say, constitute a basic guide to building an atom bomb."  The article noted that the site had been shut down the previous night after the Times "asked about complaints from weapons experts and arms-control officials" and reported that:
Officials of the International Atomic Energy Agency, fearing that the information could help states like Iran develop nuclear arms, had privately protested last week to the American ambassador to the agency, according to European diplomats who spoke on condition of anonymity because of the issue's sensitivity. One diplomat said the agency's technical experts "were shocked" at the public disclosures.
The documents reportedly included "charts, diagrams, equations and lengthy narratives about bomb building that nuclear experts who have viewed them say go beyond what is available elsewhere on the Internet and in other public forums." The FMSO portal was closed and never reopened, although that did not, of course, necessarily mean that documents uploaded (and downloaded) during the nearly 8-month project were no longer available (more on that in a later post).

In the end, one could condemn the Iraqi Freedom doc dump as an irresponsible, and politically motivated, threat to national security and suggest that it could have even contributed to Iranian nuclear advances. One could also juxtapose statements by certain politicians in their advocacy for the wide release of the Iraqi documents alongside their more recent condemnations of Wikileaks for creating some strikingly similar diplomatic and national security issues.

As always, however, the risk of overreaction is significant and if the legacy of the "Iraqi Freedom documents" experiment is that the government became even more paranoid about releasing documents it would be unfortunate.  The declassification and release of government information is frequently bogged down because of too many layers of review (see, e.g., this recent post on Unredacted).  The captured Iraqi doc dump had one layer too little.  The search for the elusive middle ground that appropriately balances transparency with security should not be abandoned.