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."

The Yanukovych Letter: Is Russia in Ukraine Really Becoming the U.S. in Panama?

Yesterday at the U.N. Security Council the Russian Federation opened a new front in the debate over international legal analysis of Russian forces in Ukraine by brandishing a letter purportedly from ousted President Viktor Yanukovych to Russian President Vladimir Putin asking for Russian forces to enter Ukraine "to establish legitimacy, peace, law and order, stability and defending the people of Ukraine."

Russia’s UN envoy shows #Yanukovich’s letter in which he asks Putin for use of Russian military force in Ukraine pic.twitter.com/DPgDZqtlU4
— RT (@RT_com) March 3, 2014

Putin picked up the issue in his own comments this morning stating "As you know, the legitimate president, Yanukovych, requested Russia to use military force to defend the lives and health of Ukrainians."

The Yanukovych letter and Putin's assertion places the issue of consent under international law front and center. Ashley Deeks at Lawfare had earlier found it puzzling that Russia had not "claimed that it has the consent of ousted Ukrainian President Yanukovych to introduce troops" noting that there "is at least a colorable argument that Yanukovych remains the head of the Ukrainian state."  Russia perhaps found Ashley's thoughts quite persuasive.

While commentary over the Ukraine controversy is full of off-hand comparisons to previous U.S. invasions in arguing that the U.S. position is hypocritical, the new letter and the consent argument invite a new, serious, and very legitimate comparison to the U.S. intervention in Panama in 1989.  Others -- including the Russian representative at the U.N. Security Council yesterday -- have pointed to the comparable U.S. justification for Panamanian intervention based on an asserted need to protect U.S. citizens and U.S. military bases in Panama, but a more important, and even closer, comparison is the argument of consent.

Consent was a central U.S. justification for intervention in Panama that was just as, if not more, thin than the paper on which Yanukovych's invitation to Putin is written. The U.S. position was that it had never recognized the Noriega regime as the legitimate government in Panama and, just before Operation Just Cause began, the U.S. government purported to swear into office -- on a U.S. military base -- Guillermo Endara as the President of Panama, who then invited U.S. forces into his country.  As the U.S. Army's Law of War Manual later described "concurrent with the invasion, Mr. Endara was sworn in as President of Panama in the U.S. Southern Command Headquarters one hour before the invasion occurred; forces were already airborne en route" (see p.82).

The U.S. therefore relied upon consent provided by a "President" who had no government and had no command and control over any military or police forces in his country, not unlike Yanukovych while drafting his letter to Putin.  The U.S. justified recognizing Endara on the basis that he had won an election in Panama months earlier that had been nullified by Noriega, but Putin has an equally colorable argument that Yanukovych remains the legitimate leader of Ukraine despite his forced removal.

I note that over at Opinio Juris, Chris Borgen and reader "Non liquet" have been discussing the Yanukovych letter as a "legal fig leaf."  I agree, but also believe that the U.S. consent argument in Panama was just as, if not more, indecently revealing.  The consent argument was so central to the U.S. intervention in Panama, in fact, that it fundamentally altered the U.S. view of the application of the law of armed conflict in finding that Panama was not an Article 2 international armed conflict.  The always-definitive W. Hays Parks opined on the issue (excerpted at p. 242, the U.S. Army unfortunately no longer has a copy of the actual memorandum, by the way. If anyone happens to have one, I'd be grateful for a copy):

Borgen's post over at Opinio Juris argues that for "about 40 years" the U.S. has "moved away from focusing on the recognition of governments" (citing the Restatement (Third) of Foreign Relations Law) and concludes by stating that he would be surprised if the Yanukovich letter would be "persuasive of the legality" of Russian intervention, but that Russia "seems to be about fig leaves, not judges' robes."  The Panama precedent is also instructive on these two points. First, District Judge William Hoeveler subsequently rejected the U.S. position, holding that the U.S. intervention in Panama was "clearly an 'armed conflict' within the meaning of Article 2" of the Geneva Conventions and that Noriega was properly a prisoner-of-war under the Geneva Conventions.  U.S. v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992).  Second, if the U.S. has been moving away from a focus on "recognition," as Borgen states, it certainly didn't show in this 2002 DOJ OLC Memo wherein the OLC reasserted:

The United States' intervention in Panama on December 20, 1989 came at the request and invitation of Panama's legitimately elected President, Guillermo Endara. The United States had never recognized General Manuel Noriega, the commander of the Panamanian Defense Force, as Panama's legitimate ruler. Thus, is the view of the executive branch, the conflict was between the Government of Panama assisted by the United States on the one side and insurgent forces loyal to General Noriega on the other side. It was not an international armed conflict between the United States and Panama, another State. Accordingly it was not, in the executive's judgment, an international armed conflict governed by common article 2 of the Geneva Conventions. (footnotes omitted).

The DOJ OLC also repudiated Judge Hoeveler's holding to the contrary "to the extent that the holding assumed that the courts are free to determine whether a conflict is between the United States and another 'State' regardless of the President's view whether the other party is a 'State' or not" (Hoeveler did not assume that, by the way, but that's another story) and the OLC alleged that Hoeveler "impermissibly usurped the recognition power, a constitutional authority reserved to the President."

Also interesting is that in the Panama intervention, the U.S. also relied, in part, on the fact that the Noriega regime had purportedly "declared war" on the U.S. This is much like if Russia would now rely upon the new Ukrainian government's recent public statements of "war" with Russia.  "But," I hear someone protest, "the Ukrainian government's statements were only after Russia had violated Ukrainian sovereignty."  The same was true with Panama in 1989.  Noriega had complained for months to the U.N. of the "movement of armed units of the United States army outside their defence sites, violation of its airspace, infiltration by United States intelligence units" and the arrival of a U.S. "offensive military team that had never before been part of the forces used to defend the Panama Canal" all of which were prior to the Panamanian "declaration of war" (and the election of Endara).

This helpful U.N. recap of the U.N. Security Council debate over U.S. intervention in Panama mirrors quite closely what we have watched the past few days in the same Council with just the names changed.  The U.S.S.R. and others asserted that the U.S. was in clear violation of international law.  The U.S. retorted that it had the "approval" of "the democratically elected leaders of Panama" and was protecting U.S. citizens.  Because of the veto power, nothing came out of the Security Council, but the U.N. General Assembly later approved this Resolution "deplor[ing] the intervention in Panama by the armed forces of the United States of America, which constitutes a flagrant violation of international law and of the independence, sovereignty and territorial integrity of States." Read the resolution and replace "United States" with "Russia" and "Panama" with "Ukraine."

There are, of course, arguments that could arguably distinguish Panama from Ukraine that I will leave others to identify. I think in both cases, Eric Posner's succinct two-point analysis on Ukraine is on point:  "1. Russia's military intervention in Ukraine violates international law" (as the U.N. General Assembly found the U.S. intervention in Panama did) and "2. No one is going to do anything about it." (As no one did with Panama in 1989).

For more on the legal analysis of U.S. operations in Panama, particularly in the context of how the nature of the conflict may affect the legal status of Panamanian government records seized by U.S. forces (which remain to this day in U.S. military custody), see my recent article "The Lost Archives of Noriega" (with apologies for the self-promotion).

UPDATED to correct typo.

30th Anniversary of Grenada Invasion & Captured Documents

Michael Leeden has a piece on the Daily Beast entitled "Remembering The Invasion of Grenada 30 Years On" (thanks to Kevin Woods), which highlights some interesting details about both the invasion and the documents seized by U.S. forces there (previous coverage of the Grenada documents is here).  Leeden states:

In the course of the US occupation, the archives of the New Jewel Movement regime—some 35,000 pounds’ worth of documents—were captured, and, after being sprayed for scorpions and spiders, flown to Washington.  The late Herbert Romerstein (as an employee of USIA) and I (as a part-time consultant to the Departments of State and Defense) were asked to organize the documents into an archive.  The work took a bit more than a year, and in November, 1984, we published a selection of documents, and shortly thereafter the whole lot was made publicly available in the National Archives.

The US military was not the only source of documents.  The diary of Prime Minister Maurice Bishop was found by some adventurous journalists from Soldier of Fortune magazine, and they swapped them with us, in exchange for copies of “our” documents.

It’s rare that one gets such a clear documentary picture of a secretive totalitarian regime and, aside from some Spanish-language material, it’s all in English.

The collection of Grenada Documents chosen by Leeden and Romerstein (they also wrote the introduction) is called Grenada Documents: An Overview and Selection the Daily Beast piece links to the Amazon page - the full-text of that publication is, however, available online here courtesy of the HathiTrust Digital Library as well as here.

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.

AP Finds Purported Al-Qaida Letter Left Behind in Timbuktu that Criticizes Cultural Property Destruction

Rukmini Callimachi of AP has a new piece (here) about a document "al-Qaida fighters left behind" in Timbuktu:

Tucked under a pile of papers and trash is a confidential letter, spelling out the terror network's strategy for conquering northern Mali and reflecting internal discord over how to rule the region.

The AP states that the document is "an unprecedented window into the terrorist operation, indicating that al-Qaida predicted the military intervention that would dislodge it in January and recognized its own vulnerability."  The letter was "found by the AP in a building occupied by the Islamists for almost a year" and it "is signed by Abu Musab Abdul Wadud, the nom de guerre of Abdelmalek Droukdel, the senior commander appointed by Osama bin Laden to run al-Qaida's branch in Africa."

In the letter Droukdel "surprisingly argues that his fighters moved too fast and too brutally in applying the Islamic law known as Shariah to northern Mali."  Of particular interest to the issue of destroyed cultural property, the Droukdel letter "criticizes the destruction of Timbuktu's World Heritage-listed shrines," among other things, on the basis that:

Our previous experience proved that applying Shariah this way, without taking the environment into consideration, will lead to people rejecting the religion, and engender hatred toward the mujahedeen, and will consequently lead to the failure of our experiment.

The Uncertain Fate of the Timbuktu Manuscripts

Following French-led troops recent retaking of Timbuktu, there remains uncertainty about the fate of the ancient Timbuktu manuscripts (previous coverage here).  Initially, Luke Harding at the Guardian had a piece "Timbuktu mayor: Mali rebels torched library of historic manuscripts" that stated:

Islamist insurgents retreating from Timbuktu set fire to a library containing thousands of priceless historic manuscripts, according to the Saharan town's mayor, in an incident he described as a "devastating blow" to world heritage.

Hallé Ousmani Cissé told the Guardian that al-Qaida-allied fighters on Saturday torched two buildings that held the manuscripts, some of which dated back to the 13th century.

*   *   *   * 

French troops and the Malian army reached the gates of Timbuktu on Saturday and secured the town's airport. But they appear to have got there too late to rescue the leather-bound manuscripts that were a unique record of sub-Saharan Africa's rich medieval history. 

*   *   *   * 

"It's true. They have burned the manuscripts," Cissé said in a phone interview from Mali's capital, Bamako. 

*    *    *    * 

He added: "This is terrible news. The manuscripts were a part not only of Mali's heritage but the world's heritage. By destroying them they threaten the world. We have to kill all of the rebels in the north."

Vivienne Walt at Time, however, has an important follow-up piece called "Timbuktu Locals Saved Some of City's Ancient Manuscripts from Islamists."  Walt cites the Guardian's distressing report that the manuscripts were "torched," but then states "That is not so, according to those who've worked for months to keep the documents safe."  According to Walt, based on interviews with Time:

preservationists said that in a large-scale rescue operation early last year, shortly before the militants seized control of Timbuktu, thousands of manuscripts were hauled out of the Ahmed Baba Institute to a safe house elsewhere. Realizing that the documents might be prime targets for pillaging or vindictive attacks from Islamic extremists, staff left behind just a small portion of them, perhaps out of haste, but also to conceal the fact that the center had been deliberately emptied. “The documents which had been there are safe, they were not burned,” said Mahmoud Zouber, Mali’s presidential aide on Islamic affairs, a title he retains despite the overthrow of the former President, his boss, in a military coup a year ago; preserving Timbuktu’s manuscripts was a key project of his office. By phone from Bamako on Monday night, Zouber told TIME, “They were put in a very safe place. I can guarantee you. The manuscripts are in total security.”

Walt adds that a second "preservationist" who "did not want to be named confirmed that the center's collection had been hidden out of reach from the militants" and noted "Neither of those interviewed wanted the location of the manuscripts named in print, for fear that remnants of the al-Qaeda occupiers might return to destroy them."

Time attempted to reconcile the reports by contacting Timbuktu's Mayor Cissé, the primary source on the Guardian piece, who, according to Time "tempered the remarks he had made to journalists earlier in the day, conceding in an interview that, indeed, residents had worked to rescue the center's manuscripts before al-Qaeda occupied the city last March. Still, he said that while many manuscripts had been saved, 'they did not move all the manuscripts.'"

The possible removal of many of the manuscripts for safekeeping and the remaining uncertainty about their fate harkens back to an August 2012 piece by Mohammed Elrazzaz on Ahram online that described the long history of efforts to protect the manuscripts from earlier threats and that had concluded:

History might be repeating itself as you read these lines: the manuscripts might be safely hidden somewhere outside Timbuktu. One day when and if things calm down, they might surface again, and the story of the Kati Family will again be celebrated. Until that day comes, the fate of Timbuktu’s Andalusian manuscripts remains to be a question mark. 

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."

"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.

Captured Documents as Evidence in Counterinsurgency Operations

Major Andrew R. Atkins of the U.S. Army has a great new article in the Military Law Review entitled "Doctrinally Accounting for Host Nation Sovereignty During U.S. Counterinsurgency Security Operations" available here.  Major Atkins argues for revisions to Army Field Manual 3-24 -- the so-called Counterinsurgency Manual (available here thanks to the Federation of American Scientists) -- to reflect more clearly and accurately the importance of host nation law in counterinsurgency operations.

Major Atkins places special emphasis on the need to expand the focus of U.S. counterinsurgency policy to reflect the primacy of host nation law (especially domestic criminal law) in circumstances in which U.S. forces are deployed to "support a sovereign host nation government" in a non-international armed conflict against insurgents within that country.  In particular, Major Atkins stresses that in these circumstances the standards for detention of insurgents is primarily governed by domestic criminal law which often provides stricter, more exacting standards and requirements for evidence than more traditional wartime military detention.

Of particular relevance to this blog is the implications of the argument for the importance of careful collection and handling of captured documents.  Major Atkins in fact specifically suggests adding a new sentence to FM 3-24 that would state, in relevant part:

captured documents, and captured equipment may yield information usable as evidence during the host nation's criminal prosecution of the captured insurgent.  Units may have to specially train and task organize capture forces to ensure the identification, collection, and safeguarding of information and items at the point of capture for use in host nation criminal justice proceedings.

Major Atkins notes that such an amendment "[e]ncourages efficient and effective collection of information and materiel for use against an insurgent in host nation criminal justice proceedings."

Joffe on Syrian Regime Archives

Alexander Joffe has a piece in The National Interest called "Preserving the Syrian Paper Trail" (available here) discussing the importance of the fate of the archives and records of the Syrian government. Joffe begins:

When the regime of Bashar al-Assad is destroyed or pushed out of Damascus, it will leave behind a wrecked capital and unparalleled record of supporting terrorist groups and covert deals with Russia, Iran and North Korea. What we understand of that record will be shaped by the documents that are preserved and analyzed. What Syrians will understand about forty years of rule by the fascist Baath party and its crimes against the Syrian people also depends on preserving something vital yet almost out of sight: the regime’s archives and files.

Joffe states that in "recent conflicts" the "United States has secured records haphazardly" citing Iraq and notes that in Egypt "members of the internal-security agency shredded files to sanitize the Mubarak regime and themselves and to create gaps in the historical record." Joffe continues:

Documents were once a prime military target. As the Allies swept across Europe during World War II, they seized hundreds of tons of Nazi documents that are still being studied today. Among other things, these provided the documentary record of the Holocaust and were introduced as evidence at Nuremberg and other war-crimes trials. They also form the basis for our understanding of that dark period of history. But such materials have slipped from view as a military priority. Actionable intelligence has been the primary focus of military “document exploitation” in Iraq and Afghanistan, even as Saddam’s and Osama bin Laden’s files have yielded vital historical and legal insights.

Joffe ends with the following call to action:

Demanding that mere paperwork be preserved seems strange when people are dying. But Syrian rebels, Egyptian revolutionaries and the next group fighting against repression need to be taught that files are a key to the future. The U.S. government and military must relearn the lessons of World War II—that the future depends in part on securing the past. Specialized skills are involved in document recovery and exploitation, more familiar to U.S. attorneys than U.S. Special Forces. Forensic accountants and computer geeks need to be at or near the front line supporting U.S. and friendly forces. Archivists, lawyers and historians need to follow up quickly, to utilize materials for criminal prosecutions and to correct the first draft of history provided by journalists and propagandists.

WWII MFA&A Officers & Cultural Property Lessons Learned

Laurie W. Rush has a piece in Military Review called "Cultural Property as a Force Multiplier in Stability Operations: World War II Monuments Officers Lessons Learned" (thanks Illicit Cultural Property). Rush, an Army archaeologist who has directed a well-regarded cultural heritage training program for deploying U.S. troops, recounts the role of the World War II Monuments, Fine Arts & Archives (MFA&A) officers.  She highlights how that work not only protected cultural property, but also contributed to the larger war effort by, among other things, counteracting enemy propaganda designed to portray the Allies as lacking in respect for local culture heritage.

Rush outlines a number of lessons from the WWII MFA&A experiences, some of which have yet to be learned in more recent conflicts. Among the lessons, Rush argues that meaningful cultural property protection during armed conflict "requires support and direction from the highest levels." During WWII, Rush notes, the MFA&A arose out of a Commission established by President Roosevelt and headed by a U.S. Supreme Court Justice. In contrast, she notes:

current cultural property protection within the U.S. Department of Defense (DOD) have been relegated to voluntary "additional duty" status for a group of dedicated DOD cultural resource managers, lawyers, and other professionals. . . . DOD still needs an institutionalized program and process to engage the cultural property protection issue in a responsive, predictable, and dependable way that gets appropriate information to the right people at the right time. This initiative should come from the secretariat level.

Consistent with Rush's recommendation, Article 7(2) of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, to which the U.S. is a party, requires that states "undertake to plan or establish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property," although I am certain the U.S. believes that its current efforts, including the work of experts like Rush, satisfy this standard.

Rush also notes:

Currently, a military museum in the U.S. has a decorative architectural feature removed from one of Saddam's palaces on display. The international laws of war forbid the removal of such an architectural element, and its current display as a war trophy illustrates the need for improved education on the issue.

The piece does not discuss in any detail the special issues of Archives - the named, but junior partner in the MFA&A organization - but highlights the importance of protecting cultural property collections.

For more on the work of the MFA&A during WWII, see the wonderful 1946 "Report of The American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas" which is available in full-text online here - in my opinion one of the most interesting U.S. government documents there has ever been (discussion of the role of the National Archives begins at p. 41).

U.N. Security Council Update on Missing Kuwait National Archives

UPDATE: Here is the formal press announcement from the U.N. Security Council.

http://www.un.org/News/Press/docs//2012/sc10680.doc.htm

The U.N. Security Council met yesterday to consider U.N. Secretary-General Ban Ki-moon's 33rd Report pursuant to paragraph 14 of Security Council resolution 1284 (1999), which relates, in part, to the continuing issue of Kuwait's missing national archives seized by Iraq during the 1990 invasion.

The Secretary-General's latest report again laments that "no substantial progress has been made in the search for the national archive, nor has credible information about its fate or whereabouts emerged," but notes that "Iraq-Kuwait relations have improved" and that "Iraq has demonstrated, by finding other missing Kuwaiti property [referring to the property returns here and here], that its credible and sustained efforts in this regard can bear results."

The report also updates on the activities of Iraq's new high-level committee focused on the missing Kuwaiti archives noting that the committee:

had met on 4 January 2012 and recommended that the General Secretariat of the Council of Ministers should request all ministries and other non-ministerial institutions to inform the committee of any properties and files belonging to the Government of Kuwait no later than 15 February 2012.

The report notes, however, that the U.N. "has not received an update on the results of those efforts."

On a recommendation from the Secretary-General, the Security Council extended the mandate of the U.N. High Level Coordinator on the issue, Gennady Tarasov, until the end of 2012 and also again reiterated its earlier call for an "intensification" of Iraq's efforts to find the missing national archives.

Saddam's Document Destruction Order

I previously posted about Saddam's wartime document preservation strategy ("When we are in a war, important documents must have two copies in two different locations. What if this location is bombed or burned?) as well as a wartime document evacuation order ("In preparation for any foreign attack (God forbid) be prepared to disperse documents from headquarters to private residences in various geographic locations").  Thanks to Nate Jones and the National Security Archive we now also have a full document destruction order available on Unredacted in a post called "Declassified Iraqi Memo Points to the Genesis of the Insurgency."

The document, which the National Security Archive obtained via FOIA, is dated Jan. 23, 2003 and indicates that it is from the "Republic of Iraq, Presidential Office, Iraqi Intelligence Service" and is addressed to "All National Offices." It states:

please do what is necessary if, God forbid, the Iraqi Command falls to the Coalition Forces -- the Americans, British and Zionists. To all the associates in your offices, and specifically the departments mentioned above, proceed in accordance with the following instructions:

1- Demolish and burn all offices in the country, especially [those] associated with ours and other departments.

2- Change your residence from time to time.

3- Sabotage electrical power stations.

4- Sabotage water stations

5- Recruit reliable sources and direct them to the mosques.

6- Associate with the Islamic Hawza 'Alemiya in Najaf. [Translator's comment: The Hawza is an Islamic religious teaching institution.]

7- Associate with the national and Islamic groups and parties.

8- Cease all internal and external communications.

9- Purchase stolen weapons from the public.

10- Develop relationships with those returning from abroad.

11- Assassinate the clergy in the mosques. [Translator's comment: Clergy here includes both Imams and orators (guest speakers).]

A couple of points about this document.

The stamps on the document indicate that the U.S. government was treating the document as U.S. Top Secret (it was also marked Iraqi Top Secret) and that it, at least the copy obtained by the National Security Archive, was declassified in 2009.  This is despite the fact that (1) the document was previously published in the London newspaper Al Hayat in July 2003 (the link to the image of the document on MEMRI is dead, but is still available courtesy of the Internet Archive here) and (2) it was also apparently posted by the U.S. government on the "Iraqi Freedom Documents" portal in 2006.  It is unclear whether the U.S. classification of the document would comport with current U.S. doctrine on DOMEX and captured documents which states:

As a general rule, captured and acquired documents and media are considered unclassified unless they originated in the US and/or an allied nation and are marked as classified. Capturing units may classify document and media to protect sources and methods or on-going operations, however, such classification should be kept to the lowest level possible and with minimal use of caveats. Documents that bear foreign classification markings are handled according to US classification standards, regardless of their original foreign classification.

In an earlier article (see pp. 1033-34), I cited the first ordered action in this document (based on the Al Hayat version) - "Demolish and burn all offices in the country" - to highlight the precarious position of government documents on the eve of foreign attack. As the great Ernst Posner wrote, defending nations "have discovered that in their fight against the conqueror the destruction of records may be a weapon as powerful as the dynamiting of railroads and the blowing up of bridges."  At those times it is the attacking forces that often have more of an interest in preserving the documents intact and the greatest danger of destruction may come from the government that created them.

Thanks again to the National Security Archive. I have added the original and translation to the Captured Documents Index under its Harmony number CMPC-2003-016373.

DEA No Longer has Copies of Captured Documents from Panama

Last year I submitted a FOIA request to the Drug Enforcement Administration (DEA) for copies of its copies of documents seized by the United States in Panama in 1989 and English translations of those documents made by Master Translating Services, Inc. (MTSI) pursuant to an agreement with the DEA.  MTSI translated thousands of the documents, which took approximately a year and for which the DEA paid more than $100,000.

I have received the DEA's response to my FOIA request, however, which states that the DEA was "unable to locate any records responsive to your request."  Like an earlier unsuccessful request to the DIA for its copies of the Ba'ath party documents obtained by the Iraq Memory Foundation, it could be that the DEA search simply failed to locate documents that are in fact in agency custody, but the result is, in any event, disappointing.

The DEA's response does not address an additional part of my request, which had asked for a copy of the records schedule that authorized the disposal of the records in the event they were not retained.

Iraqi Foreign Minister on the Missing Kuwait Archives

Several news outlets are reporting new statements by Iraqi Foreign Minister Hoshyar Zebari reaffirming Iraq's commitment to honoring its international obligations to Kuwait - including the return of Kuwaiti national archives seized in Saddam's 1990 invasion - in the context of a visit by the U.N. high-level Coordinator overseeing the issue, Ambassador Gennady Tarasov.

The interesting, and slightly ambiguous, aspect of the statement is that Zebari reportedly noted that "Iraq sent several trucks to Kuwait containing national archives and properties, and would continue exerting efforts to locating the rest of the property." Another account describes the same statement as that "Iraq handed to Kuwait, in the presence of the UN Coordinator, batches of the Kuwaiti archive and possessions." 

It is unclear which return of Kuwaiti archives Zebari is referencing.  If, however, Zebari means the Oct. 2002 return of 425 boxes and 1,158 bags of documents and archives to Kuwait (which I discussed here at #4 and which is described in extensive detail in this U.N. Secretary General report at paras. 36-75) it would be an interesting development in Iraq's advocacy on the issue, which has not relied on the Saddam-era return.  Kuwait earlier dismissed the 2002 return as containing simply "routine papers."

The other possibility is that Zebari could be referring to a far more recent, but far less significant, return of Kuwaiti property. Earlier this month, the U.N. Security Council circulated a new letter from Iraq's U.N. delegation noting that Iraq recently returned Kuwaiti currency, keys to the Central Bank of Kuwait, and "15 microfilm cassettes containing the archives of Al Anba newspaper" (which could be added to the 136 microfilm cassettes of the official archive of Kuwait Today returned late last year).

UNESCO Mission to Mali & the Timbuktu Manuscripts

A very quick update on an earlier post regarding what UNESCO's role is, and should be, in protecting ancient manuscripts in Timbuktu, Mali from the effects of the internal conflict. Voice of America reports (thanks Gary Nurkin) that "UNESCO sent a mission to Mali's capital, Bamako, on Thursday to look into the situation further."

The Timbuktu Manuscripts, UNESCO & the 1954 Hague Convention

Library of Congress

The danger to ancient manuscripts in Timbuktu in an internal armed conflict in Mali between military officers (who overthrew the President in March) and Tuarag rebels, who now control much of the North, have been well-documented in several places (see, e.g., here, here, and here - a petition to protect the manuscripts is here).

I wanted to highlight briefly, however, the recent appeal by UNESCO Director-General Irina Bokova "for concerted action to prevent loss or destruction of Timbuktu's documentary heritage" which noted

"The citizens of Timbuktu have rallied to protect these ancient documents, and I salute their courage and dedication. But they need our help. I solemnly appeal to all concerned to be especially vigilant and to work together to prevent the loss of these treasures that are so important for the whole of humanity."

UNESCO noted that Bokova contacted "national authorities in countries sharing borders with Mali" to focus on preventing any illegal export of cultural property from Mali pursuant to the 1970 UNESCO Convention on prohibiting the illicit import and export of cultural property.

The UNESCO announcement only briefly noted, however, another rather significant fact: that Mali is also a party to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (which it has been since 1961).  A crucial provision of the 1954 Hague Convention is Article 19, which expressly extends the Convention to "Conflict not of an International Character."  Article 19(1) provides that (emphasis mine):

In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.

Article 19(3) also states that UNESCO "may offer its services to the parties to the [non-international] conflict."

The significance of these provisions - whose function (roughly equivalent to Common Article 3 of the 1949 Geneva Conventions) is to provide some baseline rules in internal armed conflicts - is twofold.

Binding Rebel Forces

First, because Mali is a Party, "at least" those provisions of the 1954 Convention relating to "respect for cultural property" bind both government forces and the rebels in the conflict.  This is true even though the rebels are not a state (but see "Azawad" below) and did not themselves sign the Convention. Jiri Toman in his 1996 authoritative commentary on the Convention "The Protection of Cultural Property in the Event of Armed Conflict" cites UNESCO's Commentary explaining that "the basis of this obligation lies in the fact that each of the adversaries 'is bound by the contractual engagements undertaken by the community of which he is a part.'" The corresponding substantive provisions relating to "respect for cultural property" are outlined in Article 4(1), which states that Parties

undertake to respect cultural property situated within their own territory . . .  by refraining from any use of the property and its immediate surroundings . . . for purposes which are likely to expose it to destruction or damage in the event of armed conflict, and by refraining from any act of hostility directed against such property.

These restrictions may be waived, but "only in cases where military necessity imperatively requires such a waiver" pursuant to Article 4(2).

UNESCO & Anti-Government Forces

Second, in pursuing the goal of protecting cultural property, UNESCO is expressly empowered by Article 19 to reach out to the parties and "offer its services." The significance of this provision is easily overlooked, but it purports to allow UNESCO to consult directly with anti-government forces, which could have highly-charged political implications.  The rebels, for example, could attempt to exploit a dialogue with UNESCO to assert the international legitimacy of the rebel movement.  Arguably, this possibility also provides UNESCO with leverage in dealing with those forces.  "If you want your movement to be viewed as legitimate in the international community," UNESCO could argue privately, "you should take steps to secure and protect cultural property in territory you control. Allowing looting and destruction will only bring international condemnation." The central government, in turn - and with some justification - could protest UNESCO's meddling in its internal affairs.

Article 19(4) addresses this problem, in part, by stating that Article 19 "shall not affect the legal status of the parties to the conflict" which means that, by offering its services to anti-government forces, UNESCO should not, as a legal matter, be viewed as recognizing the authority or legitimacy of those forces. That legal clarification, however, does not change the perception that might result.

The tension in such situations goes even deeper.  As Jiri Toman notes, UNESCO's involvement in a non-international armed conflict risks "running counter" to UNESCO's Constitution which prohibits UNESCO "from intervening in matters which are essentially within" the "domestic jurisdiction" of States that are UNESCO members.  Toman argues that "to avoid possible and even probable friction with Member States" in such situations, "UNESCO has to refer to its general mandate for the protection of cultural property, which also derives from its Constitution." Toman concludes

In spite of all the difficulties it may encounter, UNESCO must fulfil the responsibilities entrusted to it by its Constitution but it must also comply with Article 19 of the Convention. It must expect criticism and opposition and accusations of interference in the internal affairs of States. But, in acting as it does, UNESCO is simply carrying out its mandate and ensuring respect for what represents the higher interest: the protection of cultural property.

UNESCO, Mali & Azawad?

What about UNESCO's actions in this particular conflict?  One could read the recent UNESCO appeal broadly to be itself an "offer" of UNESCO's "services."  UNESCO reports, for example, that the Director-General "appealed to all relevant authorities, including Mali's warring factions . . . to be on the alert against any attempt to traffic" stolen cultural property and states that UNESCO "stands ready to provide technical assistance to Mali . . . in the application of" relevant treaties, including the 1954 Convention.

It is unclear, however, whether UNESCO has taken more proactive or concrete steps, including a more direct offer of services to, or communication with, rebel forces in accordance with Article 19.  If so, UNESCO may have heeded Toman's wise advice that, based on the extensive experience of the International Committee for the Red Cross in comparable situations of armed conflict, "UNESCO will do well to keep its approaches [to the parties] confidential." If not, UNESCO should consider taking such steps if they could result in greater protection for cultural property.

Finally, both the analysis and the practicalities are complicated yet further by the recent declaration by rebels (who of course have their own website) that the northern portion of Mali is now a new, independent state called Azawad.

The Destruction of the Desert Storm Documents

Based in part on records recently obtained via FOIA that have not been previously released publicly, this is a brief account of the fate of records captured from the Iraqi military during Operation Desert Storm in 1991. As described below, the originals were destroyed by the Defense Intelligence Agency (DIA) in 2002 due to mold contamination, while digital copies of a portion of the documents are at the Hoover Institution at Stanford, but are not currently open for research.

Capture, Processing & Exploitation of the Desert Storm Documents

The documents captured by U.S. forces from the Iraqi military during Desert Storm have been variously, and inconsistently, measured as "12 million pages" (in a 1994 NARA technical review of U.S. Army operations), "approximately 4 million pages" or "400 boxes" (in a 2002 DIA memo) or "300 cubic feet" (in a 2002 NARA report).

As the latter report noted: "U.S. troops literally swept up these documents as they moved through Kuwait and Iraq, removing paper documents from every possible source, from buildings to the pockets of dead soldiers."  On the extent of the collection, NARA stated:

The documents date from 1978 up until Operation Desert Storm (1991). The collection includes Iraq operations plans and orders; maps and overlays; unit rosters (including photographs); manuals covering tactics, camouflage, equipment, and doctrine; equipment maintenance logs; ammunition inventories; unit punishment records; unit pay and leave records; handling of prisoners of war; detainee lists; lists of captured vehicles; and other military records. The collection also includes some manuals of foreign, non-Iraqi weapons systems. Some of Saddam Hussein's Revolutionary Command Council records are in the captured material.

The collection also "includes records of the Gulf Cooperation Council," which, I earlier speculated, may be documents the Iraqis seized from the Kuwaiti government.

NARA's 1994 review described a military order issued on Jan. 26, 1991 "to develop an imaging system for captured Gulf War documents." Within 24 hours the Army's Decision Systems Management Agency had "developed system specifications and briefed senior officers, who authorized procurement."  Thus began the U.S. Army's DOCEX system.

The digital conversion of the "12 million pages" was performed in Kuwait and Saudi Arabia with Kodak scanners and IBM computers.  They were scanned in TIFF4 format and stored on Digital Audio Tapes (DAT).  Translators "perused each document and annotated work sheets with keyword information, such as the date of capture, location where the document was found, and type of document."  An index database was also created that "formed the basis of a paper index" used to "access the records."

The DIA led the analysis and exploitation of the captured documents which resulted in "approximately 495 Intelligence Information Reports (IIRs) . . . while U.S. troops were deployed in Kuwait and Iraq."  After the war, military reservists "produced an unknown number of additional reports under DIA auspices." The importance of the captured documents for intelligence purposes predictably decreased over time and within several years after the war "both the paper records and digital images," which remained in DIA custody, "were largely unused."

U.S. State Department and Iraqi War Crimes

Unfortunately, the decreasing intelligence value also appears to have influenced the plans for maintaining the digital collection. The 1994 NARA report noted under "Migration Plans" that "Due to the short term intelligence value of the DOCEX records, no need exists to migrate the image and/or index data." The long-term value of the digital collection and index for other purposes was apparently not considered, although it was foreseeable.  As a NARA archivist later noted:

These records are of the type which researchers will want to see when working on the Desert Shield/Desert Storm era. Similar records relating to Germany, Japan, Italy, Korea, and Vietnam are heavily used.

In fact, in the "late 1990s" the State Department contacted the DIA and "expressed interest in looking at some of the documents."  It appears this was part of a State Department push, following the Iraq Liberation Act of 1998 (which called upon the U.N. to establish an international criminal tribunal for Iraq) to build a case for war crimes and crimes against humanity against Saddam Hussein. In a September 2000 speech, the Ambassador-at-Large for War Crimes Issues in the Clinton Administration, David J. Scheffer, stated that the "primary objective" was to see Saddam and "the leadership of the Iraqi regime indicted and prosecuted by an international criminal tribunal." As part of that project Scheffer described the "archive of millions of pages of documents captured by U.S. forces in Kuwait and southern Iraq during Operation Desert Storm" and stated that the U.S. was "working to declassify these documents."

Digital Corruption, Mold Contamination & Destruction

When the DIA examined the Desert Storm documents in response to the State Department's request, however, it found that "the DAT tapes had become corrupted and that only 60% of the documents could be read."  Moreover, "the database used to track the records had become corrupted and was inaccessible beyond recovery, leaving only the paper index remaining."

Given that the original hardcopy documents were still in DIA custody, the DIA began a new "scanning project to re-scan the 40% of the documents that had been lost." It is unclear exactly where, or under what conditions, the original documents were stored other than in "temporary storage" in the U.S. within DIA "office space." During the scanning project, however,

several DIA staff members were taken ill due to exposure to the records. The Department of Defense conducted a test of the records and determined that the paper documents were contaminated with "U.S. origin mold" that can cause conjunctivitis, rhinitis, bronchitis, skin, rash, asthma, and hypersensitivity pneumonitis in susceptible individuals.

As a NARA archivist later noted, "the presence of 'U.S. origin mold' does not say much for their maintenance under U.S. Control." A contractor was hired to scan the remaining images and placed all of them (the original 60% plus the re-scanned 40%) in TIFF6 format on 43 CD-ROMS.

Thereafter, the DIA submitted an SF-115 schedule, job number N1-373-02-03, in May 2002 to NARA and requested authority to destroy the contaminated original records.

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.

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.