Wednesday, September 26, 2012

Significance of New Draft Iraqi Law Restricting Access to Saddam Regime Documents

AFP has an important new article by Guillaume Decamme called "Iraq archives chief moves to seal Saddam-era files" available here that reports that the director of the Iraqi National Library and Archives Saad Iskander has "prepared and submitted a draft law that, if adopted by parliament, would criminalise the publication of Saddam-era documents without the consent" of individuals mentioned in them.

According to the article the draft law is a response to the use - and sometimes abuse - of Saddam regime documents, quoting Isakander:
"Some documents published in the press named people who were executed, and when, and where," Iskander said. "The didn't conceal the names of the victims."
"We don't have the right to publish the names of the victims and those who committed the crimes," he said. "This is up to them."
Iskander also condemned the actions of some political parties, which have threatened to release documents allegedly showing candidates from opposing parties were members of Saddam's now-banned Baath party."
I also wonder, however, if the draft law could also be related to the recent negotiations with the United States about the return of Iraqi documents in U.S. custody. Whether, for example, as a possible precondition for the return of the documents, the United States has urged Iraq to enact laws to control access to Iraqi records to alleviate concerns that repatriating Iraqi documents could either endanger individuals named in them or otherwise create further unrest or political instability.

The article describes both support for and concerns about the law. Decamme notes that an "Iraqi government spokesman Ali al-Dabbagh said the government would support such a law" and that "Iskander's proposal is also viewed kindly within the secular, Sunni-backed Iraqiya bloc, which saw some of its candidates face bans in the run-up to 2010 parliamentary polls over allegations of Baathist ties."  At the same time, the article notes that "others warn that the proposed new law could place limits on freedom of the press":
"How can we remain silent when we see a document about former Baath party members which carries information about a genocide?" asked Ziad al-Ajili, the head of the Journalistic Freedoms Observatory, an Iraqi watchdog.
"Remaining silent is a crime. The crime is not to publish these documents," Ajili said.
The draft law is significant news, but its extent and possible impact is unclear from the limited information in the article which indicates that the AFP did not have the full details of the law noting that Iskander "declined to reveal the details as the draft was still under review."

The specifics that are available are that, quoting Iskander, "This law will organise the level of access to information. Some information will be disclosed to the prime minister, some to judges. But not everybody will have access to all information."  The article also notes that "Iskander said the draft law provides for penalties including fines and prison sentences for those who release documents without authorisation."

A central issue left unclear from the limited details in the article is the question of to which documents exactly the law would apply.  Would all Saddam-era documents be encompassed or only those more sensitive documents that might contain personal information of victims?  Also, would the law only cover those documents in Iraqi government custody or would the law purport to cover documents in private custody in Iraq, U.S. government custody in Qatar, the Ba'ath party documents at Hoover, the copies of Iraqi documents at the Conflict Records Research Center, or even the copies I've posted on the Captured Documents Index?

If any of that sounds far-fetched, it is important to compare the application of U.S. law.  As has been illustrated in the case of Wikileaks, simply because documents have previously been released publicly by private actors does not mean that the government will not restrict access to them.  See, e.g., the ACLU's exhibit that compares the redacted State Department cables it received via FOIA and the corresponding public Wikileaks cables and the court opinion upholding the State Department's redactions.

The U.S. prosecution of Bradley Manning also illustrates that the United States extends legal restrictions to copies of U.S. government documents in private hands.  That is, Manning is not accused of removing U.S. classified documents (in a manner that would deprive the U.S. government of their use) but rather of making digital copies of them which he allegedly provided to Wikileaks. Several U.S. Circuit Courts of Appeal in fact have found that intangible confidential U.S. government information remains U.S. government property regardless of who owns the paper it is reproduced on.  See, e.g., U.S. v. Girard or U.S. v. Jetersee also the State Department Legal Advisor's initial letter to Julian Assange demanding that Wikileaks "return any and all classified U.S. government material in its possession."

Hopefully additional details about the draft law will be forthcoming.