Haditha Massacre: After 9 Years Still Unanswered Questions About Destroyed Documents

Based on documents recently obtained via FOIA, there are still two open inquiries by the National Archives and Records Administration (NARA) into the possible unlawful destruction or removal of records related to the killings of 24 Iraqis in Haditha in November 2005 - 9 years ago this month. Despite a letter from the Marine Corps in mid-2013 that purported to finally respond to the inquiries -- which, as I'll explain below, is completely inadequate -- NARA has not closed out the inquiries, nor should it.

The first unauthorized destruction inquiry began in August 2006 following a New York Times article entitled "Marines May Have Excised Evidence on 24 Iraqi Deaths" which stated that an investigation by Maj. Gen Eldon Bargewell had uncovered, among other things, possible tampering with a unit log book "which was meant to be a daily record of major incidents the marines' company encountered" but which "had all the pages missing for Nov. 19, the day of the killings, and that those portions had not been found."  The initial NARA inquiry letter is here.  (As an aside, the fact that NARA had to learn about this from a news article is arguably itself evidence that the Department of the Navy/Marine Corps "did not follow the law").

The second inquiry began in December 2011 (NARA letter here) following another stunning New York Times article entitled "Junkyard Gives Up Secret Accounts of Massacre in Iraq" that was based on 400 pages of classified interviews related to an investigation of the Haditha killings found in an Iraqi junkyard where they were being burned by local Iraqis.

In both cases the Department of the Navy initially responded to NARA by stating that a substantive response would have to yield to ongoing Naval Criminal Investigative Service (NCIS) investigations (2006 letter and 2011 letter).  Yet released emails (see, e.g., here) also show that it was thereafter left to NARA to attempt repeatedly to follow up on its inquiries.   The Navy and Marine Corps appeared both disorganized and dismissive of the NARA inquiries.  In one 2012 email, for example, the Navy asked an inquiring NARA representative, "Who is lighting the fire on you at NARA?"

Finally, last year a May 30, 2013 memorandum from the Commandant of the Marine Corps (signed by the Director of Marine Corp Staff) purported to address, at last, both NARA inquiries. The memo simply stated, however, that "regarding alleged destruction of records, a thorough and extensive review of available documentation and previous investigations was conducted.  As a result of this review, there were no findings which revealed destruction or unauthorized removal of records" (emphasis mine).

A superficial reading of this carefully-worded paragraph might give the impression that the Navy/Marine Corps actually investigated the questions posed by NARA.  Instead, it appears -- as the letter in fact states -- that they simply reviewed the "documentation and previous investigations" into the Haditha matter generally and there were "no [formal] findings" of "destruction or unauthorized removal of records."  This is supported by an email exchange that preceded the formal response in which NARA tried to clarify whether the Navy had actually completed an "investigation into the alleged destruction of Haditha records" and the Navy representative responded that it was the "investigation into Haditha in general."  This is wholly inadequate for several reasons.

First, the lack of a specific relevant "finding" in one of the various criminal investigations about the Haditha killings is irrelevant unless one of them was tasked specifically with looking at, and reporting back on, whether there was an unauthorized destruction or removal of federal records, regardless of whether it justified criminal charges.

Second, to the extent the records of those investigations are public, they do appear on their face to show records destruction.  The 2006 New York Times article, for example, indicated that the destruction of evidence related to the log book arose in the context of the investigation by Gen. Bargewell.  The text of the resulting report was later made public here and it does include sections indicating possible destruction of records relating to a log book, including this one:

A more detailed accounting of these facts would be available in the interviews to which the footnotes above cite as well as other materials cited in the report, but they are not publicly available (so far as I am aware).  Additional evidence on this point also comes in the form of a subsequent Article 32 hearing in 2007 for CPT Randy Stone, in which 1SG Albert Espinosa testified that the "log books from Nov. 19 were incomplete or missing." In the case of the 2011 NARA inquiry, the factual predicate is even more easily verified: the New York Times has copies of classified federal records they obtained from an Iraqi junkyard!

To be clear, it would be possible for the Navy/Marine Corps to have investigated these claims specifically and to have concluded that there was insufficient factual support to conclude that pages in the log book were destroyed at all or to conclude that the destruction of the records in the Iraqi junkyard -- while undertaken in an incompetent manner that created a serious security incident -- was not unauthorized records destruction because they were disposable reference copies or otherwise covered by an approved records schedule.  But there is no indication that this is what occurred, despite years of delay.

The larger point is that in cases such as this, where publicly available evidence clearly supports at least a prima facie case of unauthorized destruction, NARA ought to require agencies to explain what investigative steps were undertaken and describe its analysis in determining whether or not the destruction was unauthorized, rather than an inexplicable, conclusory response of "no unauthorized destruction."  Part of the value of these NARA inquiries is to identify agency misinterpretations and misapplications of the federal records laws in order to remedy them to prevent more widespread destruction.

To NARA's credit, despite the May 2013 letter from the Marine Corps, NARA continued to list both inquiries as still open as of the end of fiscal year 2013 and, based on the results of recent FOIA requests, nothing has changed.

Finally, while the significance of these NARA inquiries extends far beyond the question of missing pages in a unit log book or some binders in a junkyard (as mentioned above), those missing pages are more than important enough.  If the IRS undertook Herculean efforts (see pp. 5-7 in the attachment) to try to resurrect probably meaningless emails of Lois Lerner, surely we can expect the United States Marine Corps to provide a meaningful response to NARA regarding records relevant to a horrific event in which 24 human beings were killed and for which Marines were charged with crimes.  Even though the criminal investigations may be finished, for the historical accounting for Haditha - which is already mentioned in the same breath as My Lai - every record counts.

DoD Policy Gave Al Qaeda Members Money Back in Iraq, but Keeps Money of Cleared & Transferred GTMO Detainees

On the heels of the U.S. government continuing to claim that GTMO detainees are still not "persons" under RFRA even though for-profit corporations are, Jason Leopold has a new piece on Vice News called "By Asking for His Wallet Back, a Gitmo Detainee May have Revealed US War Crimes" that describes the U.S. government's refusal to return seized money to former GTMO detainee Djamel Ameziane who is now back home, and destitute, in Algeria.  The government's refusal is based on a purported "policy" (that it has not produced) not to return seized money to released GTMO detainees despite the clear rule under the law of armed conflict that money of detainees remains their personal property and should be returned to them.  The filings by Ameziane's lawyer (see the motion for return of property) flesh out this basic, and very clear, rule in the 1907 Hague Regulations, the 1949 Geneva Conventions, and customary international law.

The government's response (see gov't opposition here) is not to argue in any depth that their "policy" conforms with international law, but rather that the detainees have no right under current law and D.C. Circuit case law to seek a court's help in challenging it.  The government's only justification for this policy is to prevent the detainee's personal money - even if all they had were very small sums - from being used "in a manner that would adversely impact the safety and security of the United States" by, for example, funding "terrorism."

There are a lot of problems with the government's position, but what I want to focus on here is that this "policy" for GTMO detainees appears to be the exact opposite of the policy for detainees in Iraq, even if they were found to be members of Al Qaeda.  As explained below, provided the sum was less than $5000, the U.S. military, in accordance with the law of armed conflict, would automatically return seized money to released detainees (of many different kinds) in Iraq, which makes the GTMO policy all the more puzzling and unjustified.

In particular, what purports to be the Standard Operating Procedures for Iraqi detention operations under Task Force 134 dated February 2008 (posted by Wikileaks here) contains detailed guidance on the treatment of property seized from detainees in U.S. custody in Iraq (see pp. 42-50), including, especially, the impounding, receipting, and ultimate return of seized detainee money.  The Task Force 134 policy attempts to follow fairly closely the law of armed conflict standards and normal U.S. military regulations for the disposition of detainee currency.  The policy also contains a reasonable exception to the procedure in cases in which a detainee is found with "large sums of Allied/U.S. currency or negotiable instruments" (defined to mean $5000 or more) whereby an investigation is undertaken to see whether the detainee in fact has a personal legal claim to the currency.  This is consistent with the law of armed conflict which protects only "personal" property (as opposed to enemy government property that might be in a detainee's possession) and is reasonable in that in only is triggered by large sums (unlike in the case of Ameziane and other GTMO detainees).

In addition to being yet another troubling departure from legal standards for GTMO detainees, Leopold's piece also quotes Eugene Fidell from Yale Law School who makes an even more compelling argument that the GTMO policy is simply mean spirited. "To take this person's entire net estate and just hold onto it demeans us."

New Article on Iraqi Intel on Iranian Nuclear Program Based on Captured Documents

The CIA's latest issue of Studies in Intelligence has a new piece by an anonymous author entitled "Iraqi Human Intelligence Collection on Iran's Nuclear Weapons Program, 1980-2003" that relies upon a number of Iraqi documents captured by U.S. forces that are available at the Conflict Records Research Center at the National Defense University. The abstract of the new piece is below and available here, the full-text pdf of the article is here.

Well before the United States and the Western world first questioned Iran’s nuclear goals, members of Iraq’s intelligence services had recruited high-level Iranian officials and individuals involved in Tehran’s nuclear program. This article draws on captured IIS and GMID records held at the Conflict Records Research Center (CRRC) at the National Defense University in Washington, DC. Until US forces entered Iraq in 2003, most research on Saddam’s regime had relied on secondary sources or “the occasional memoir or defector’s account.” This is no longer the case. From the beginning of the Iraq War in 2003, US troops and their allies captured millions of Iraqi state records. The records, many of which are available to scholars today, offer a variety of primary sources relating to the inner-workings of Saddam’s Ba’athist state. The records also reveal much about Iraq’s foreign human intelligence (HUMINT) collection discipline, and it is upon these records that this account is largely based.

Senate Passes Resolution on Iraqi Jewish Archive: Some Thoughts

Last night the Senate passed by unanimous consent Senate Resolution 333 (available here), which "strongly urges" the State Department to "renegotiate" with Iraq "in order to ensure that the Iraqi Jewish Archive be kept in a place where its long-term preservation and care can be guaranteed."  Led by Sen. Pat Toomey, the Resolution had 30 co-sponsors from both parties.

Some thoughts:

First, the Resolution has a balanced tone which is conducive to the type of re-negotiation it urges.  It gives credit to Iraq, for example, for "acknowled[ing] the importance of the Archive" and demonstrating "a shared respect for the wishes of the Iraqi Jewish diaspora" based on its agreement to, and attendance at, the burial of several Torah fragments from the Archive in a New York cemetery in December 2013 (Iraqi Embassy press release on that event is here, AP coverage here).  The Resolution also both "reaffirms the United States commitment to cultural property under international law," which I would read as a show of respect for the position of Iraq, while it also "reaffirms the United States commitment to ensuring justice for victims of ethnic and religious persecution."

Second, the Resolution puts forward what appear to be reasonable and modest goals.  After a series of "whereas" phrases that put the status and fate of the Iraqi Jewish Archive in historical context, the substance of the Resolution is to urge (1) that the State Department negotiate with Iraq "in order to ensure that the Iraqi Jewish Archive be kept in a place where its long-term preservation and care can be guaranteed" and (2) that "the Iraqi Jewish Archive should be housed in a location that is accessible to scholars and to Iraqi Jews and their descendents who have a personal interest in it."  Of course, Iraq would respond that negotiation is not even necessary to accomplish goal (1), which Iraq has stated it shares.  Goal (2) is a bit more complex, however, especially given that (as the burial of the Torah fragments illustrated) special religious importance attaches to some of the physical originals that can not be replicated through digital copies and the fact, stated elsewhere in the Resolution, that the "Iraqi Jewish community" is "now represented by the diaspora outside Iraq."

Finally, the Resolution provides a compelling justification for new negotiations noting that the agreement between the National Archives and Records Administration (NARA) and the Coalition Provisional Authority (CPA) from August 2003 (available here) was signed "under great urgency and before adequate time could be dedicated to researching the history of the Iraqi Jewish Archive" and, again later in the Resolution, that that the agreement was "signed before knowing the complete history of the Iraqi Jewish Archive."  This is clearly correct.  As I mentioned in an earlier post, for example, when the State Department published a Notice in the Federal Register in August 2003 designed to protect the Iraqi Jewish Archive under the Immunity from Seizure Act it strains credulity that the State Department enforced even its own standards that purport to require a "professional inquiry" using "independent, multi-source research" into the provenance of foreign cultural property coming into the U.S. and a certification that there is no "reason to know"of any "potential for competing claims of ownership." The complexity of the legal status of the Archive was simply not considered adequately and fully in the rush -- both understandable and praiseworthy -- to protect them.

More broadly, the larger issue is the nature of the "agreement" that the Resolution urges the State Department to "re-negotiate," which raises unresolved questions.  A recent news piece on the controversy over the Archive, for example, includes quotes from U.S. Rep. Jerrold Nadler asserting that the NARA-CPA agreement was essentially between two U.S. entities and asking "Why should we negotiate with the government of Iraq at all? . . . I don't see that they have any business in this" and the Iraqi Ambassador to the U.S., Lukman Faily, responding that "this was an agreement, a legal agreement, agreed with the [CPA] back in 2003 and it's owned by the Iraqi government," both of which are overstatements.

Contrary to Rep. Nadler's assertions, there is, of course, a second letter "agreement" directly between the Iraqi Ministry of Culture of and the CPA in which Iraq agreed to the removal of the archive "on the condition that" the "documents are returned to Iraq."  Moreover, Nadler's characterizations of the CPA, which was acting as occupying power in Iraq, are not necessarily consistent with the U.S. government's inconsistent, and never fully resolved, assertions regarding the precise legal status of the CPA.  See, for example, the Congressional Research Service's report, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities from 2005 which notes that U.S. government assertions about the CPA make unclear even basic facts such as whether the CPA was created by the President, CENTCOM, or a U.N. Security Council resolution.  And in any event, the CPA-NARA agreement also directly involves Iraq given that the CPA formally appointed the Iraqi Ministry of Culture its designee under the terms of the agreement (2004 Letter of Designation here).

On the other hand, neither of these "agreements" is a formal U.S. treaty and neither may constitute an "international agreement" or executive agreement under U.S. law.  I would be happy to be corrected, but I have not seen any indication that either agreement was reported to Congress pursuant to the Case Act, for example.  Regardless of the extent to which it is a "legal" agreement, however, it still would be enough to constitute a "political" commitment that the U.S. cannot simply disregard.

According to an anonymous State Department official, it appears that the State Department has already begun discussions with Iraq in order to find "a creative approach to access and sharing of these documents and materials."  While concern for diplomatic appearances may prevent either side from characterizing such discussions as a "re-negotiation" -- even if accurate -- hopefully an acceptable solution can be found in line with the goals identified in S. Res. 333 that successfully navigates all of the competing interests.

Conflict Records Research Center in the FY 2014 NDAA

The compromise FY 2014 National Defense Authorization Act (NDAA) draft released yesterday (available here) includes an important new statutory provision (see § 1071) related to the Conflict Records Research Center (CRRC), which has been providing access to an impressive collection of captured records from Saddam's Iraq and Afghanistan.  An earlier post discussed the CRRC's funding crisis, which was due, in part, to the delay in the consideration of the NDAA in Congress.  According to its last update, the CRRC has subsequently been operating with bridge funding and one employee.

Section 1071 of the FY 2014 NDAA draft is entitled "Enhancement of the capacity of the United States Government to analyze captured records." It includes a provision that will become, if passed, 10 U.S.C. § 426 called "Conflict Records Research Center" that authorizes the Secretary of Defense to establish the CRRC.  This may seem odd given that the CRRC of course already exists within the National Defense University, but providing an explicit statutory basis for the CRRC may place it on more firm footing going forward.

Moreover, the other substantive provisions appear to be designed to broaden the CRRC's ability to obtain funding.  According to the "Joint Explanatory Statement" the "additional statutory authorization would allow the [CRRC] to be funded collectively by the Department of Defense, the Office of the Director of National Intelligence, and other departments and agencies, rather than rely on discrete partner funding for each activity."  The provision "would also allow the [CRRC] to receive funding from other agencies, states, or other foreign and domestic entities, including academic and philanthropic organizations, to support important research in international relations, counterterrorism, conventional warfare and unconventional warfare."

Other noteworthy detail includes the statutory "purposes" of the CRRC:

(1) To establish a digital research database, including translations, and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States, with rigid adherence to academic freedom and integrity. 

(2) Consistent with the protection of national security information, personally identifiable information, and intelligence sources and methods, to make a significant portion of these records available to researchers as quickly and responsibly as possible while taking into account the integrity of the academic process and risks to innocents or third parties. 

(3) To conduct and disseminate research and analysis to increase the understanding of factors related to international relations, counterterrorism, and conventional and unconventional warfare and, ultimately, enhance national security. 

(4) To collaborate with members of academic and broad national security communities, both domestic and international, on research, conferences, seminars, and other information exchanges to identify topics of importance for the leadership of the United States Government and the scholarly community.

Finally, the draft includes a statutory definition of "captured record:"

The term "captured record" means a document, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States.

Voting on the FY 2014 NDAA could begin later this week.

Blueprint for Litigation Over the Iraqi Jewish Archives

The ongoing controversy over the Iraqi Jewish Archives (discussed in other contexts here, here, here, and here) -- which were found in Iraqi intelligence headquarters in Baghdad in 2003, brought to the United States for preservation, and are currently on display at the National Archives -- appears fairly straightforward: should they or should they not be returned to Iraq?

The U.S. government is planning to return the archives to Iraq next year, but there is significant opposition. An online petition and letters from Sen. Schumer and other members of Congress to Secretary of State John Kerry demand that the United States not return them.  Separately, Iraq has indicated it may be willing to negotiate to allow them to stay longer -- but still temporarily -- in the United States.

This post (the first of several on the debate) explores another potential forum for the controversy: a U.S. court. Could a lawsuit prevent the return of the archives and/or challenge Iraqi government assertions of ownership?

The short answer is that the chances of formally blocking the return of the archives to Iraq by court order are slim, but there is a navigable path to persuading a U.S. court to adjudicate legal ownership over the archives.  While litigation is often a poor method of dispute resolution, the Iraqi Jewish archives may present a scenario in which a court's careful balancing of the property rights of individuals with the sovereign rights of Iraq and a fact-intensive examination of the history, the law, and the documents could be uniquely valuable.

Background

While the basic story has been covered in recent press, for more in-depth background the required reading is Bruce P. Montgomery's excellent article "Rescue or Return: The Fate of the Iraqi Jewish Archive" in the International Journal of Cultural Property (posted here with Bruce's kind permission), which also frames some of the legal issues that are explored below.  Moreover, a crucial set of background documents recently released via FOIA are now up on the National Archives and Records Administration's (NARA) Iraqi Jewish Archives website:

(1) An August 17, 2003 letter from the Iraqi Ministry of Culture/State Board of Antiquities and Heritage (SBAH) to the CPA that authorized the removal of the archives from Iraq for purposes of preservation provided that they would be returned to Iraq within two years;

(2) An August 20, 2003 agreement between the Coalition Provisional Authority (CPA) and NARA that contemplated the NARA exhibit of the archives now ongoing;

(3) A June 28, 2004 Letter of Designation from the CPA (just as sovereignty was passing back to Iraq) that appointed the Iraqi Ministry of Culture as the CPA's designee under the August 2003 CPA-NARA agreement; and

(4) A June 2011 Interagency Agreement between the State Department and NARA relating to the completion of the preservation of the archives and their transfer back to Iraq.

These newly-released documents provide details not previously known and allow analysis of some of the legal issues at a greater level of specificity.

Turning to possible litigation, the first threshold issue is, of course . . .

Who could file a lawsuit over the Iraqi Jewish Archives?

Locating plaintiffs who have standing to present a claim of ownership to some portion of the archives is a first challenge.  Ideally, this would be individuals directly divested of ownership.  Moving one step further would be descendants of such individuals.  A step further than that would be organizations that could plausibly claim to act on behalf of the former Iraqi Jewish community.  One website is inviting individuals to identify themselves to "claim" their "Iraqi heritage" and the NARA exhibit and digital collection may assist in identifying potential plaintiffs (as this WashPo article illustrated).

Assuming proper plaintiffs can be found, there are significant obstacles to a suit ever reaching the final issue of ownership, such as the Immunity from Seizure Act, the Foreign Sovereign Immunities Act, and the Act of State doctrine.

Can the return of the archives be blocked? the Immunity from Seizure Act

The Immunity from Seizure Act (22 U.S.C. § 2459) is designed to protect foreign cultural property brought in the United States for temporary exhibition from being seized by U.S. litigants.  In August 2003, the State Department published this Notice in the Federal Register determining (1) that:

historic and modern books, documents, parchment scrolls, and other items discovered in early May 2003 in the basement of the Mukhabarat in Baghdad, most of which pertain to the Jewish community, imported from abroad for temporary exhibition in the United States, including restoration necessary thereto, are of cultural significance

(2) that these materials were "imported pursuant to an agreement with the foreign owner or custodian" and (3) that their eventual exhibition at NARA "is in the national interest."

What does this mean?  Under the Immunity from Seizure Act, the publication of these determinations means that no U.S. court "may issue or enforce any judicial process, or enter any judgment, decree, or order" that deprives the institution exhibiting the property -- in this case NARA -- of custody and control of the property.  On first blush, that seems quite broad, and if a lawsuit were filed in relation to the Jewish archives, the DOJ would unquestionably intervene and challenge the suit on this basis.

A plaintiff could, in turn, directly challenge the State Department's determinations and the invocation of the Act.  It is hard to believe that the due diligence State purports to require for requests for immunity was undertaken in the case of the Jewish archives. This checklist requires a "professional inquiry" using "independent, multi-source research" into the provenance of the property and a certification that the applicant does not know "or have reason to know" of any "potential for competing claims of ownership." Was there really such a certification regarding the Jewish archives?  Moreover, the CPA/NARA Agreement may support an argument that the planned "exhibition" was a pretext to invoke the Act and that the presence of the archives in the U.S. for more than a decade without any such exhibition stretches the Act too far.  The best time for such a challenge, however, would have been years ago when no exhibition was imminent.  In any event, a challenge to the State Department determinations would be unlikely to prevail. See, e.g., Magness v. Russian Federation, 84 F. Supp. 2d 1357 (S.D. Ala. 2000) (refusing to overrule immunity from seizure determination and to prevent the return of cultural artifacts to Russia).

While the Immunity from Seizure Act may likely therefore preclude a lawsuit against NARA challenging NARA's custody or NARA's plan to return the documents to Iraq, the Act may still allow a U.S. court to hear a case against the foreign "owner" -- the Republic of Iraq, the Iraqi Ministry of Culture, and/or the Iraqi SBAH -- in relation to the legal status of that property.  See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 312 (D.D.C. 2005) ("Immunity from seizure is not immunity from a suit for a declaration of rights").   As in the Chabad v. Russian Federation case regarding Jewish archives in Moscow (previously discussed here and here), a lawsuit related to the legal issue of ownership doesn't even necessarily require that the property be in the United States.

A suit against a foreign sovereign government, however, raises other issues . . .

Does the Foreign Sovereign Immunity Act preclude litigation against Iraq?

The Foreign Sovereign Immunity Act (generally at 28 U.S.C. §§ 1602-1611) provides immunity for foreign governments in U.S. courts unless certain exceptions to that immunity apply.  The Act was designed as a shield, but the exceptions have also become swords for plaintiffs.  Here, the most promising is the "takings" or "expropriation" exception (§ 1605(a)(3)) which might permit a lawsuit against Iraq or Iraqi government cultural entities, if a plaintiff shows (1) that the Jewish archives were taken in violation of international law AND (2) that the Iraqi government defendant has engaged in commercial activity in the United States.

(1) Taking in violation of international law

For purposes of the sovereign immunity analysis, a plaintiff need not prove with finality that the archives were taken in violation of international law -- that will come if, and when, the case reaches the merits. Instead, the plaintiff must present "substantial and non-frivolous" allegations that a taking in violation of international law is legitimately in issue in order for the court to exercise jurisdiction against a foreign government.  Chabad v. Russian Federation, 528 F.3d 934, 941-42 (D.C. Cir. 2008).

The discovery of the Jewish archives in Saddam's intelligence headquarters is consistent with the confiscation of the property from the Jewish community during Iraq's history. A possible problem is that, to the extent the Iraqi government seized the archives, pursuant to Iraqi law, from individuals who were at the time Iraqi citizens, some courts would refuse to recognize that as a violation of international law.  See, e.g., De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1396 (5th Cir. 1985) ("As long as a nation injures only its own nationals" the injury "is a purely domestic affair" and is "outside the ambit of international law"); Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976) (denying claim by German citizen for restitution of property confiscated by Nazis, stating "violations of international law do not occur when the aggrieved parties are nationals of the acting state").

Other courts, in contrast, have held that foreign government confiscations of property of their own citizens could be violations of international law if the taking was discriminatory and without payment of just compensation. See, e.g., Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1027 (9th Cir. 2010) (finding painting seized by Nazi Germany from individual in Germany to be a violation of international law).  Moreover, there may be a factual, historical argument that the relevant "taking" occurred when the owners of the property were no longer citizens of Iraq.  According to Sen. Schumer's letter, for example, items within the archives were placed in a Baghdad synagogue during the mass exodus of the Iraqi Jewish community in the "early 1950s" and were only much later "seized by Saddam Hussein in 1984" when the original owners would have long since resettled in other countries.  To the extent this is accurate, it could arguably internationalize the taking and provide support that such confiscations could violate international law even assuming a restrictive interpretation of the "ambit of international law."  Cf. Chabad v. Russian Federation, 528 F.3d 934, 943-44 (D.C. Cir. 2008) (discussing whether at time of taking plaintiff was, or was not, a Soviet citizen).

Given all of this, the right plaintiff may be able to satisfy this element. On the second . . .

(2) Commercial activity

Under the Foreign Sovereign Immunities Act, the required "commercial activity" could come in two forms.  Assuming the case is filed while the archives are still in the United States, the plaintiff could demonstrate that the Iraqi defendant engaged in a commercial activity in connection with the archives being in the United States or that the Iraqi government, as "owner," more generally engages in commercial activity in the United States.

An important clarification is that "commercial activity" is not limited to for-profit activities, but is much broader.  In determining whether an activity is "commercial" the "central question is whether the activity is of a kind in which a private party might engage." Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 708 (9th Cir. 1992).  Courts have held, for example, that a foreign government loaning artwork to a U.S. museum and promoting its exhibition, even on a nonprofit basis, can itself be "commercial activity." See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 314 (D.D.C. 2005) ("There is nothing 'sovereign' about the act of lending art pieces, even though the pieces themselves might belong to a sovereign. Loans between and among museums (both public and private) occur around the world regularly").  [As an aside, last year Congress considered a bill called the "Foreign Cultural Exchange Jurisdictional Immunity Clarification Act" that would have prevented such actions from constituting "commercial activity," but the bill never became law.]

Excluded from this expansive definition of "commercial activity," therefore, is a rather limited class of sovereign acts that are uniquely governmental in character such as legislative acts or diplomatic or military activities.

So has Iraq engaged in commercial activity in connection with the NARA exhibit?

Here, the recently released agreements and letters provide valuable detail.  The initial involvement of Iraq is documented in the August 17, 2003 letter from the Iraqi SBAH to the CPA.  In this two-paragraph letter the Chairman of the SBAH simply indicated that "we support" the CPA's "effort to protect these documents from further damage" and then states:

According to paragraph No. 21 of the Iraqi Antiquities Law No. 55 for the year 2002, we agree with your plan to send the documents to the United States temporarily for the restoration by National Archives and Records Administration (NARA) on the condition that, following the restoration, the documents are returned to Iraq

For purposes of the "commercial activity" analysis, Iraq authorizing the temporary removal of the archives from its territory pursuant to its antiquities law is arguably precisely the type of act only a sovereign government, and not a private party, can perform and therefore is not "commercial activity."  The SBAH letter does not mention, or evidence any Iraqi involvement in, the exhibition of the archives.

The exhibition plan is instead in the CPA-NARA agreement, which raises another issue: could the actions of the CPA, with legal authority over Iraq during a belligerent occupation, be imputed to Iraq?  That is, could the CPA's involvement in the transfer of the archives to the U.S. for exhibition be "commercial activity" that could be attributed to Iraq?  In relation to the CPA's direct actions, that may be a stretch (although worth further research).  The CPA's June 2004 appointment  of the Iraqi Ministry of Culture as its designee, however, to control the execution of the CPA-NARA agreement thereafter could be a more direct connection between Iraq and potential "commercial activity" related to the exhibition.  Indeed, even moving beyond the underlying documentation, NARA's Iraqi Jewish Archive website currently identifies Iraq as a "partner" providing "continued support and advice."

Finally, beyond its specific connections to the Jewish archives, a plaintiff could investigate more broadly other activities of the relevant Iraqi government defendants in the U.S. that may constitute "commercial activity." Has the Iraqi Ministry of Culture and/or SBAH, for example, engaged in any commercial activity in the U.S. in connection with various partnerships with U.S. entities (see, e.g., here and here), other previous cultural exhibition agreements, or even in relation to its involvement with the Ba'ath Party documents at the Hoover Institution?

Act of State Doctrine

An additional possible obstacle is the Act of State doctrine, pursuant to which traditionally U.S. courts will not "examine the validity of a taking of property within its own territory by a foreign sovereign government" even if the taking may have violated international law. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).

The doctrine raises a similar problem to that discussed above in relation to whether the seizure of the Jewish archives in Iraq from Iraqi citizens would violate international law.  The same factual question may similarly determine how the Act of State doctrine might apply -- when exactly was the "taking" of the archives?  For this doctrine the primary question may become whether the confiscations occurred before or after 1959.  This is because Congress has limited the application of the Act of State doctrine for confiscations of property in violation of international law after  January 1, 1959 via the so-called Second Hickenlooper amendment at 22 U.S.C. § 2370(e)(2).  That is, if the confiscations occurred after 1959, the doctrine would not preclude the court from looking into the issue of whether the seizures violated international law.

Do we ever get to the actual issue of ownership?

The central frustration of litigation over the Jewish archives would be the significant period of time that could elapse before all these preliminary questions of jurisdiction and immunity (and others) -- any of which could result in dismissal of the case -- are finally determined before a court will consider the substantive issue of ownership.  While I will save full consideration of that ultimate question to another day, a couple of final thoughts.

First, given the long delay before reaching the merits, the possible effect of the lawsuit on the return of the archives becomes unpredictable, but fascinating.  While the Immunity from Seizure Act, as discussed above, may preclude an effort to prevent the return of the archives by court order, an active lawsuit calling into question the ownership of the archives might nevertheless alter the U.S. government's calculations regarding their return to Iraq. Moreover, while litigation could create a corresponding incentive for Iraq to demand a prompt or even expedited return of the archives, the return itself would have the effect of lifting the protection of the Immunity from Seizure Act, thereby empowering a court, depending upon its ultimate determinations regarding ownership, to order a transfer of custody to a prevailing plaintiff.  While the chance of Iraq complying with such a court order would unquestionably decrease if the archives had already returned to Iraq, a refusal could result in the same kind of contempt sanctions being imposed on the Russian Federation on a daily basis in the Chabad case.

Second, in relation to the merits, I will say that the growing digital collection of the material increasingly appears to undermine an implicit assumption of the broader debate that the "Iraqi Jewish Archive" should be treated as one whole.  The scope of the material varies widely (which is not surprising given their haphazard discovery in a flooded basement).  On one extreme, there are documents and photographs of a personal nature that defy classification as Iraqi government records or Iraqi cultural property . . .

From http://www.ija.archives.gov/content/3295

On the other extreme, there are Iraqi ministry records relating to Iran, Iraqi intelligence records about Israel, and others that rather clearly appear to be Iraqi government records . . .

From http://www.ija.archives.gov/content/255

Put another way, the "Iraqi Jewish Archive" is not always "Iraqi," not always "Jewish," and it is not a unified, cohesive "Archive."  This argues for a careful, fact-intensive examination of the materials in assessing their proper status whether in public debates over the controversy, in formal diplomatic negotiations, or, as a last resort, in court.

Sen. Schumer Calls on State Department Not to Return Jewish Archives to Iraq

I will have a longer post on the ongoing debate over the fate of the Jewish archives discovered in Iraq in 2003, but quickly this breaking news that Sen. Charles Schumer has today written to Secretary of State John Kerry urging the State Department to reconsider the decision to return the materials to Iraq. The press release is here and the text of the letter is republished below:

Dear Secretary Kerry,

I write today out of deep concern over the decision to return over 2,700 pieces of Iraqi Judaica to Iraq next year. These treasured artifacts belong to the Jewish community and I ask that you do everything in your power to ensure that these artifacts remain available and accessible to Jews worldwide – especially the exiled Iraqi Jewish community.

In 2003, American soldiers found the collection of Iraqi Judaica in a flooded Baghdad Intelligence Center, and the United States has spent over $3 million dollars preserving the collection. The collection, which includes partial Torah parchments and ancient prayer books, had been seized by Saddam Hussein’s troops and belonged to members of the exiled Iraqi Jewish community. This priceless collection of Judaica includes a Hebrew Bible with commentaries from 1568, a Babylonian Talmud from 1793, a Torah scroll fragment from Genesis, a Zohar from 1815 and other sacred ritual objects.

Items in the collection were seized by Saddam Hussein in 1984 from a Baghdad synagogue. Iraqi Jews placed the collection there during their mass exodus in the early 1950s. In the 1940s, outbreaks of anti-Jewish rioting occurred and in 1948, Zionism was made a capital crime. Between 1950-1952, more than 130,000 Jews left Iraq and were not allowed to carry more than one suitcase each. When the United States attempted to assist Iraqi Jews who wished to leave Iraq after the U.S. invasion in 2003, just 34 Jews were found in the entire country – a mere shadow of a 2,500 year old community which at its height numbered over 130,000 people.

These items belong to the people who were forced to leave them behind when the Iraqi government chose to exile them from their homes. Since the exile of Jews from Iraq virtually no Jewish life remains in the country – this treasured collection belongs to the Jewish community and should be made available to them. I strongly urge you to reconsider your decision to return these artifacts to the Iraqi government and urge you to work with Jewish organizations and the Iraqi Jewish community both in the United States and abroad to find a location to store and display these cherished items in a manner which respects their history. 

Sincerely,

U.S. Senator Charles E. Schumer

It was Saddam's Sword

Yesterday the Department of Homeland Security (DHS) issued a press release stating that it had returned a sword "looted in 2003 from Saddam Hussein's personal office in Baghdad" to the government of Iraq at "a private ceremony" and the residence of the Iraqi Ambassador to the United States in D.C.  This, in fact, is the very same Saddam sword I had discussed in a post last year called "Actually, That Might be Saddam's Sword After All" which was a response to Spencer Ackerman's piece "Sorry, That's Not Really Saddam's Sword You're Buying."

Return of Saddam Sword to Iraq, July 2013

As background, apparently after hearing that it had been auctioned in early 2012 in New Hampshire (the auction house description has been taken down, but thanks to the Internet Archive the text is here), the U.S. Immigration and Customs Enforcement's Homeland Security Investigations initiated an investigation and "seized the sword as a possible Iraqi cultural artifact."

The investigation concluded based on an examination -- involving the State Department and the Department of Defense -- of the "regulations surrounding the importation of war trophies from Iraq" that "this ornate ceremonial sword cannot be considered a modern battlefield weapon and is therefore not eligible to be exported as a war trophy." It also, rather importantly, concluded that the "historic sword" constituted Iraqi cultural property under Office of Foreign Assets Control regulations.

I will have more to say on the legal issues soon, but for now suffice it to say that the DHS action raises some problems and questions, not the least of which is, if DHS is treating that Saddam sword as "looted" cultural property that needs to be returned to Iraq in order to "ensure that current and future generations aren't robbed of their nation's history," what about this other Saddam sword on display at the National Infantry Museum in Columbus, GA?

National Infantry Museum, "Exhibit: 'Saddam Hussein Sword & Rifle"

A request to the National Infantry Museum for verification that this sword is still on display went unanswered.  UPDATE: The National Infantry Museum has confirmed that the exhibit containing Saddam's sword remains just as it is pictured above and that there are no plans to change it in the foreseeable future.

New Operation Iraqi Freedom Captured Records Schedule

On the occasion of the 10th anniversary of the beginning of the 2003 Iraq war, I wanted to quickly note that a new Defense Intelligence Agency records schedule (N1-373-12-01) covering electronic copies of documents captured during Operation Iraqi Freedom and Operation Enduring Freedom was recently made publicly available (here).  As you can see, the schedule was approved back in Jan. 2012, but NARA recently made the redacted version available on its website.  I will have more to say on the significance - or lack of significance - of this schedule on the issue of the original captured documents in a future post.

New U.N. Secretary-General Report on Iraq & Kuwait's Missing National Archives

Last month the U.N. Secretary-General submitted to the U.N. Security Council his 34th report (here) pursuant to paragraph 14 of U.N.S.C. Resolution 1284 from 1999 that deals, in part, with the issue of Kuwaiti national archives that have been missing since Saddam's 1990 invasion of Kuwait (coverage of the 33rd report is here and the 32nd report here).

In the new report, the Secretary-General again concludes that "no significant progress has been made in the search for the national archive of Kuwait, nor has credible information about its fate or whereabouts emerged," but nevertheless concludes that "Iraq has demonstrated, by finding other missing Kuwaiti property, that its credible and sustained efforts were bearing results."

The report provides a few interesting new developments.

First, in addition to the special Iraqi committee focused on the search for the Kuwaiti archives that was set up in late 2011, there is also now a special Kuwaiti committee on the missing archives "chaired by the director of the international organizations department of the Foreign Ministry." The Kuwait committee is apparently awaiting "an indication from Iraq on when both entities could meet in order to further work on the search for missing Kuwaiti property."

Second, on June 27, 2012, Iraq returned to Kuwait "27 crates containing tape recordings belonging to the archives of Kuwait Radio" and "two books belonging to the University of Kuwait." Both sets of materials "had been seized by the former Iraqi regime during its occupation of Kuwait in 1990."  The protocols for the return of these materials (enclosed within the 34th report) noted that:

this partial recovery of property was undoubtedly a step forward, and that the Kuwait side hopes that it will be followed by the return of more valuable and significant property, including, in particular, the national archives belonging to the Amiri Diwan, the Diwan of the Crown Prince and the Ministry of Foreign Affairs.

Elsewhere in the report the Secretary-General briefly summarizes the progress made since the first Secretary-General report in 2000 on the "the return of all Kuwaiti property, including archives, seized by Iraq." Interestingly, he mentions only more recent examples of the return of "the archive of official Kuwaiti television and radio stations, microfilm archives of Kuwaiti newspapers" and expressly notes that there has, however, been "little progress in the search for the national archive" while failing even to reference the 425 boxes and 1,158 bags of documents returned to Kuwait in late 2002 (described in the Secretary-General's 10th report, see paras. 36-75).

Third, the report encloses translations of the advertisements that the Ministry of Foreign Affairs of Iraq published in national newspapers last year urging people to come forward who may have information on the missing Kuwaiti national archives:

Finally, the report notes that, as a result of a series of negotiations, the issue of the missing Kuwaiti property would no longer be overseen by a U.N. High-level Coordinator (the most recent of which was Ambassador Gennady Tarasov, whose mandate was to expire on December 31, 2012), and the responsibility going forward would be transferred to the U.N. Assistance Mission for Iraq (UNAMI).  The U.N. Secretary General expressed confidence that UNAMI was "particularly well suited for this task."

Gen. McChrystal on Captured Documents & Intelligence

In a recent CBS interview (available here) about his new book (which I have not yet read), retired U.S. Gen. Stanley McChrystal highlighted the crucial importance of the analysis of captured documents and media as part of, in the words of the CBS report, "transform[ing] the Joint Special Operations Command into the organization that killed the two most notorious terrorists of the 21st century -- Osama bin Laden, and Abu Musab al Zarqawi, the shockingly ruthless leader of the insurgency in Iraq." 

The CBS report notes:

In Iraq McChrystal found out it wasn't enough just to send commando teams on nighttime raids to kill or capture terrorists.

"As the violence was rising and we would do operation after operation, very good operations, they would still see the situation deteriorating," he said.

For all their military skills, they were not tapping into the power of information.

"They'd take a bag . . . They'd put the things they had captured -- documents, computers, phones or whatever -- and then send that back with a little note on it, basically. And when I went to look at some of our facilities, I found a room where those bags had just been stacked in there. And they weren't being translated, they weren't being exploited, because we just didn't have the manpower or the expertise."

So McChrystal committed the heresy of bringing outsiders into the world of special operations. 

"I would go into rooms and I'd see big commandos sitting across from 22-year-old female intelligence analysts, and the commandos just sitting quietly, as the analyst was the expert. Or, I saw young men, civilian young men come out and they have pierced things all over their faces, which was counter to the culture of special operations, but they brought expertise and equivalent passion. They care just as much as the operations."

Within two years, the number of nighttime raids -- and with it the amount of intelligence exploited -- climbed from 18 a month to over 300.

"We started as a book shop, and by the time we were up and completely built into a network, we were Amazon.com," he laughed. "And our real strength was this network that moved information."

New Details from Iraqi National Archives

Leonard Kniffel has a piece in American Libraries magazine on continuing security problems at the Iraq National Library and Archives called "Terror Has Not Withdrawn: Daily Life for Librarians in Iraq" available here.  Near the end of the piece there are a couple of new details about the issue of seized records and Ba'ath party materials and information from the Director of the National Archives Saad Eskander.

Regarding negotiations between the U.S. and Iraq over the possible return of seized records (see some earlier coverage here), Kniffel notes:

The Iraqi government recently formed an intergovernmental committee to look into the issue of the records seized by the US government. The committee is headed by the deputy minister of foreign affairs, and its members include representatives from the Ministry of Culture (including Eskander), the Ministry of Tourism and Antiquities, and the General Secretariat of the Council of Ministers. The committee has formed a three-member team that will negotiate with the US government. Eskander is also a member of that negotiation team.

Kniffel also notes that despite budget cuts and "amid the terror and turmoil," the archival collections at the National Archives have grown by 25%.  He quotes Eskander stating, "This is due to the fact I managed to persuade some Iraqi political parties to hand over to us the library of the Baath Party's training school" which "includes publications in Arabic, English, and French."

"Lost to History: Missing War Records" - ProPublica & Seattle Times

In case you missed it, Peter Sleeth from ProPublica and Hal Bernton of The Seattle Times have an important two-part piece on the U.S. military's failure to create or maintain adequate records of operations in Iraq and Afghanistan and the consequences, both personal and historical, of that failure. The first part (available here) is called "Lost to History: Missing War Records Complicate Benefit Claims by Iraq, Afghanistan Veterans" and the second part (here) is "A Son Lost in Iraq, but Where is the Casualty Report?"

The reporting relies, in part, on some fascinating government documents and reports including this brief on a "GWOT [Global War on Terrorism] Archive Project" and this 2009 Army "information paper" on "Army Operational Records" that begins by noting that the "long-term ability of an Army to learn from its experiences, prepare effective doctrine, adequately train and care for its Soldiers, and generate an able and ready force requires that it develop methods and procedures to capture its own operational data" and later states that between 2004 and 2007 "very few Operation ENDURING FREEDOM records were saved anywhere, either for historian's use or for the services documentary needs for unit heritage or for the increasing challenge with documenting Post Traumatic Stress Disorder (PTSD)."

The pieces provide a powerful example of the too-often-ignored importance of recordkeeping.

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. Jeter; see 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.

U.S./Iraq Negotiations on Iraqi Archives and Documents

The State Department released a press release today consisting of a "Joint Statement of the U.S.-Iraq Political and Diplomatic Joint Coordination Committee" reporting on a meeting today in Baghdad in which the "Governments of the Republic of Iraq and the United States reaffirmed their strategic partnership."

The press release states that during the meeting - "co-chaired by Iraqi Foreign Minister Hoshyar Zebari and U.S. Assistant Secretary of State for Near Eastern Affairs Ambassador Elizabeth Jones" - the "United States and Iraq discussed the ongoing process of repatriating archives and documents which are part of the patrimony of the Iraqi people." No further details are provided about the extent of those discussions, unfortunately, but the use of "archives and documents" is at least suggestive that the negotiations concerned both the Iraqi Jewish archives as well as the thousands of boxes of documents seized by U.S. forces.

The press release also notes that during the meeting the "United States praised Iraqi efforts to resolve Chapter VII issues regarding its relationship with Kuwait, in accordance with UNSC Resolution 833. The United States is committed to working with both Iraq and Kuwait to resolve remaining Chapter VII issues." Those issues include the Kuwait national archives missing since Saddam's invasion. As I have argued previously (see here and here), Kuwait's missing archives and the U.S.-seized documents today's State Department release calls "the patrimony of the Iraqi people" are not necessarily unrelated as the latter could potentially help locate the former.

Researching at the Iraqi National Archives

In the latest TAARII Newsletter of the American Academic Research Institute in Iraq (available here, older issues are available here), there is a piece by Alda Benjamen called "Research at the Iraqi National Library and Archives" that gives a detailed report on a December 2011 research visit with up-to-date information about the current status of the Iraqi National Library and Archives (INLA).

Benjamen discusses issues of access, security, and the process for researchers requesting archival records. In covering the different time periods represented by the archival collections, Benjamen notes:

Researchers interested in the history of twentieth-century Iraq will find archival material up until the 1960s or so in the INLA. I was told that sources not deemed “sensitive,” such as reports on agriculture, from the Ba‘thist period are still available at the INLA. The overwhelming majority of Ba‘thist documents are currently housed at the Hoover Institution in California. Readers of the TAARII newsletter are likely to be familiar with the ongoing dispute with regard to the Ba‘thist archives in the U.S., and the demands of the Iraqi government officials and INLA staff to have them returned to Iraq. In Iraq, certain organizations have some Ba‘thist sources as well. These include: Iraqi political parties, certain organizations (e.g., organizations dedicated to martyrs), and a few Iraqi professors. The lack of Ba’thist archives in the country makes it difficult for Iraqi graduate students and researchers to conduct research on their country’s modern history. (footnotes omitted)

On the issue of Ba'thist documents in private hands, Benjamen further states in a footnote:

In a conversation with an Iraqi graduate student doing research at the INLA, I learned that a certain professor in Najaf has a collection of Ba‘thist documents. According to her, graduate students contact him and he readily shares archival material with them.

"Conspiring Bastards": Brands & Palkki on Saddam

Hal Brands and David Palkki recently published a fascinating article in Diplomatic History called "'Conspiring Bastards': Saddam Hussein's Strategic View of the United States" (I unfortunately cannot post the full-text, but the abstract is here).  The article makes extensive use of captured documents from Iraq available at the Conflict Records Research Center in providing a colorful tour of the development of Saddam's views of the United States from the late 1960s until the 1990 invasion of Kuwait.


On the value of the captured documents, the authors note at the start:

Until recently, the paucity of internal, primary-source documentation on Saddam's regime forced scholars to resort to a sort of Kreminology to divine the strategic calculus that drove his decision making. This is beginning to change. With the toppling of the Baathist regime in 2003, U.S. and coalition forces recovered millions of pages of Iraqi state records from various ministries and government offices. These records document the activities of the Republican Guard, the intelligence agencies, the Presidential Diwan, and other offices. They include everything from routine administrative correspondence to tapes and transcripts of meetings between Saddam and his top advisors. While gaps in coverage remain, the captured records shed considerable light on Iraqi decision making and national security policy under Saddam.

Particularly interesting, and entertaining, is the account of the 1986 revelation to Saddam, Iraq, and the rest of the world that the Reagan administration had been secretly selling arms to Iran, what Saddam apparently called "Irangate." Brands and Palkki state that "Saddam mounted a surprisingly subdued diplomatic response" designed to "shore up U.S. backing for Baghdad by taking a moderate public line" and note that "[t]o the extent that this strategy aimed to win the moral high ground in dealing with Washington, it worked" noting that "[a]s Ambassador Newton later put it, 'I never thought Iraq would be in a position to take the high road with us, but they did.'" Privately, however:

It is difficult to imagine an episode better tailored to exacerbate Saddam's fears and suspicions in this regard - his constant wariness of conspiracies, his mistrust of American intentions, his worries about U.S.-Israeli-Iranian encirclement. Viewed through this lens, Irangate appeared not as the half-baked scheme it was, but rather as evidence of a grand conspiracy against the regime.

Brands and Palkki note the consequences of this, stating "from the late 1980s onward, Saddam would often refer back to this incident as the opening shot in an American onslaught against Iraq" and quote Saddam from a captured document from the CRRC's collection dated after his 1990 invasion of Kuwait stating "The war was launched on us long before all this" and "It officially started in the 1986 meeting, and was exposed under the title 'Irangate.'"

The article concludes that "From the time Saddam came to power in the late 1960s through the invasion of Kuwait more than two decades later, his view of Washington was dominated by remarkable suspicion and hostility," but notes that

these perceptions derived from a conspiratorial mindset that was, in its own way, eminently useful, in that it led Saddam to create overlapping layers of internal security that allowed him to sustain the Baathist regime for thirty-five years. And while Saddam's fears were exaggerated, they were not completely baseless. Harming Iraq was never the primary purpose of U.S. policy during this period - broader considerations such as containing Soviet influence and maintaining regional stability took pride of place - yet American initiatives were frequently prejudicial to Saddam's government. From U.S. support for the Kurds in the 1970s through Irangate in the 1980s, Washington's policies confirmed Saddam's gravest suspicions and made the conspiracy theorist, at least in his own eyes, a prophet.