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.

The Full AlSabri Opinion Released

The D.C. Circuit in Alsabri released its full opinion, available here (thanks Lawfare), late last week. It is unredacted and also unsurprising.

As revealed its the earlier one-page judgment, the Circuit upheld Judge Urbina's lower court decision that held that Alsabri was lawfully detained.  I previously discussed Judge Urbina's evaluation of the 92-page collection of captured documents, AFGP-2002-800321 (originals and translations), including his assessment of the authenticity and reliability of the documents and the importance, in my view, of separately considering the context of individual pages and the value of consulting the original documents. I ended by stating that it was "unclear what, if anything, the D.C. Circuit might make of these issues."

In its opinion, the D.C. Circuit does briefly discuss the captured documents, but largely avoids substantively examining the issues they raise in any depth by applying a highly deferential "clearly erroneous" standard to its evaluation of Judge Urbina's decision.  In a passage that seems to confirm that only English translations were consulted, the Circuit summarizes that:

the government introduced evidence that Alsabri did in fact receive weapons training. The principal evidence was an English-language translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda records. A Defense Intelligence Agency (DIA) record, which the government submitted as a supplemental exhibit, indicates that the documents were captured by Coalition forces from the "Director of Al-Qa'ida Security Training Office," and are "similar to other materials recovered from enemy forces."

The Circuit then notes that "Alsabri contends that the district court erred in concluding that the records of scheduled and completed training refer to him." It does not engage the arguments in detail, however, but rather simply holds that "the district court did not clearly err in finding that the documents refer to Alsabri."

In a footnote the Circuit Court also notes that Alsabri specifically took issue with Judge Urbina's characterization of a list of "arriving brothers" as a "training roster" when not even the government had argued that the "arriving brothers" were necessarily "arriving" to a training camp.  On this point the Circuit commits, in my view, the same error as Judge Urbina and assumes that because the 92 pages of documents form part of AFGP-2002-800321 in the Harmony database they necessarily are related to one another rather than being, as Alsabri had argued (and the originals provide some support), a "hodgepodge of materials."  Specifically, the Circuit states that "[g]iven the context provided by the remainder of the documents" Judge Urbina's "characterization of the list is not clearly erroneous." The "context" on which the Circuit is relying here may unfortunately be nothing more than an artificial context created by the individual that chose to scan these 92 pages together as one file and assign one Harmony number (for an explanation of that process, see the Standard Operating Procedures for the Combined Media Processing Center in Qatar available here).

Propaganda, Open Source Intelligence & the First Amendment

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

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

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

The case has now been appealed to the D.C. Circuit Court of Appeals. The amicus brief linked above was filed on behalf of a group of former members of the U.S. intelligence community in support of Bahlul's First Amendment argument, but from an intriguing angle.  The brief argues that if the U.S. criminalizes the mere act of terrorist organizations posting propaganda videos or documents to the internet, it would adversely affect U.S. intelligence operations, which rely heavily on exploiting such videos and documents as "open source" intelligence.  It argues:

Failing to apply First Amendment protections to the propaganda video created by [Bahlul] limits the free flow of information and interferes with Americans' right to know. Furthermore, it does a grave disservice to our national security because of the chilling effect it would have on the generation and receipt of information relied upon by the Intelligence Community.

In relation to the State of the Ummah video at issue, the brief notes that it "expresses the motivations of and identifies key figures in al Qaeda" which is information that is "valuable open source intelligence" and that the "future dissemination of valuable information such as this should be encouraged and, at the very least, not prevented." The brief quantifies the substantial reliance on open source intelligence noting that an "estimated 80-90% of all collected U.S. intelligence comes from open sources."

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

In the preface to the Terrorist Perspectives Project, for example, the authors dismiss concerns over the possibility that open source "jihadi" material on the internet, on which their study relies, could be deliberate "disinformation" by arguing that "the enemy’s public discourse matches its private discourse as revealed in captured documents" and on the basis that if the "enemy" was attempting to "mislead 'infidel' analysts" the "enemy" would "inevitably mislead its own members."  Meanwhile, Col. Joseph M. Cox (no relation) in his fantastic 2010 article "DOMEX: The Birth of a New Intelligence Discipline" (thanks Secrecy News) argues that captured documents can be more reliable than some other sources of intelligence:

The true significance of DOMEX lies in the fact that terrorists, criminals, and other adversaries never expected their material to be captured. The intelligence produced from exploitation is not marked with deception, exaggeration, and misdirection that routinely appear during live questioning of suspects.

Yet the level of sophistication, or lack of sophistication, attributed to "jihadists," "terrorists," and "al Qaeda" varies widely (and, in my view, dangerously).  One minute "terrorists" are accused of using sophisticated counter-interrogation techniques and communicating with each other via hidden messages encrypted in pornographic videotapes using steganography, the next minute "terrorists" are viewed as failing to prepare even for the highly foreseeable possibility that their documents could be captured.  An assumption that captured documents from any source are not potentially seeded with misinformation or that custodians of those documents were not utilizing information security practices that could render the pool of documents captured either non-representative or outright misleading seems suspect.

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

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

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.

Archives, Hearsay, & Wartime Evidence

AP had an interesting piece over the weekend called "Researchers push to open UN archive" about the archives of the United Nations War Crimes Commission. The article summarizes:

Leading British and American researchers are campaigning to make the files — hundreds of thousands of pages in 400 boxes — public for the first time in 60 years, arguing that they are not only historically valuable but also might unearth legal precedents that could help bring some of today's war criminals to justice.

*  *  *  *

The archive belonged to the United Nations War Crimes Commission, a body established in October 1943 by 17 allied nations to issue lists of alleged war criminals — ultimately involving approximately 37,000 individuals — examine the charges against them and try to assure their arrest and trial.

*  *  *  *

Concerns about putting every name in the archive into public view could remain an obstacle to opening it. Plesch said some countries could also be sensitive about documents that could indicate their reluctance to pursue war crimes trials.

The UN has a finding aid for the collection, which includes the current policy on access.  The general rule is that the archives are accessible for persons "engaged in serious research" about the Commission or "related problems in international law." Carved out of that access, however, are those portions of the collection "that refer to specified individuals charged or suspected of war crimes" and "lists of war criminals, suspects and witnesses, and related indexes, and the formal charges and related papers." Access to those portions is limited to either official government research or to individual researchers approved by the government in which he or she is a "national or permanent resident." 

What I find most interesting is that the stated justification for the carve-out of records specifying "individuals charged or suspected of war crimes" is that such records "include unsubstantiated information and hearsay evidence which may not have been submitted to judicial process."  The issue, it would appear, is whether making the names and accusations public would unfairly stigmatize the accused (or perhaps their descendants) when the evidence underlying those accusations may be wanting.  In the AP piece, for example, ICC prosecutor Luis Moreno Ocampo is asked "whether names should still be blacked out after 60 years" and responds that "It has to be clear these are people who are under investigation as suspects. They are not guilty. It has to be properly managed."

While the passage of more than 60 years might ameliorate the effect, it also could make it worse if only the questionable evidence has survived while contemporaneous information and evidence that might have contradicted the accusations or tended to prove the innocence of the accused has been lost to history. A 2002 article by Boris V. Ananich called "The Historian and the Source: Problems of Reliability and Ethics" describes this problem in some depth.  Ananich discusses the difficulty of dealing with records of political trials in the U.S.S.R. from the 1920s and 30s in which individuals were "accused of belonging to a conspiracy against the Soviet regime, attempting to organize a coup d'etat, and working with foreign powers." The trials, however, "were fabricated by the secret police," included coerced confessions, and "as a rule, the accusations of the arrested had no real foundation."  Ananich describes the issues he and his colleagues went through in publishing these records, which were of "great scholarly importance," in a responsible manner that would highlight to an unwary researcher the palpable possibility of fabrications.

Finally, it is interesting that while archivists and historians are carefully trying to manage the risk of wartime accusations based on hearsay evidence creating historical misperceptions and unjustified stigma, the reliance on hearsay evidence in current cases in the D.C. Circuit Court of Appeals involving living individuals currently in stigmatizing wartime detention is heavier and broader than it has ever been. A cert petition filed just last week with the U.S. Supreme Court, for example, argues:

The habeas procedures now mandated by the court of appeals all but guarantee the government's success. And the fulcrum on which the playing field is tilted in the government's favor is the court's complete rejection of any restriction on the admissibility of the government's hearsay evidence. . . . the court of appeals requires the district court to disregard the Federal Rules of Evidence, and to consider all hearsay, including hearsay that otherwise would clearly be inadmissible, such as raw intelligence reports of interrogations by unknown interrogators of unknown subjects under circumstances that the government refuses to disclose.

Alsabri v. Obama: Captured Documents in Court

A Guantanamo case currently awaiting an appellate decision from the D.C. Circuit, Alsabri v. Obama, illustrates the difficulty of using captured documents as evidence. Thus far public analysis of the captured documents angle in the case, however, has been lacking for a very good reason: heavy redactions.

The 92-page collection of captured documents referenced both in Judge Urbina's redacted February 2011 District Court opinion (denying Alsabri’s habeas petition) and in the parties’ redacted appellate briefs - appellant brief, appellee brief, appellant reply (thanks Lawfare) - is completely redacted in the government factual return publicly filed in 2009 (save for page numbers). However, in another striking example of inconsistent redactions in GTMO filings, an almost completely unredacted version of the full 92-page collection - AFGP-2002-800321 - was filed in a different case (compare the 92-page redacted and unredacted filings for yourself). This allows one to fill in many redacted holes in the opinion and briefs.

While there are many other issues and other evidence in the case that may determine the ultimate result (and giving the D.C. Circuit the benefit of the doubt that results in detainee habeas cases are not always inflexibly predetermined - see, e.g., Silberman's concurrence), the captured documents are a uniquely central issue in the litigation.

Judge Urbina on Context, Authenticity, and Reliability of Captured Documents

During the habeas hearing before Judge Urbina, Alsabri’s attorneys argued that the government had never provided any source or contextual information for the 92-pages of documents that became “Government Exhibit 29” or - in Judge Urbina’s opinion - the “AFGP Documents.” At the hearing, however, the government suddenly provided for the first time a DIA record (the admissibility of which is an issue on appeal) that stated that “the AFGP Documents consist of English-language translations of Arabic-language documents captured by coalition forces during Operation Enduring Freedom” and that the record “seem[ed] to reflect” they were recovered from the “Director of Al-Qa’ida Security Training Office” and that the DIA, “which prepared the translation,” indicated that they “contain[] [t]he names of the students admitted to the training in the tactics of [a]rtillery, communication, infantry and their distribution.”

Based, in part, on the “DIA record indicating that the exhibit represents a DIA translation of training records,” Judge Urbina rejected Alsabri’s argument that the government had “not established the reliability of the AFGP Documents.” Further, while Judge Urbina noted that the failure of the DIA record to specify “when and where the AFGP Documents were recovered” was “significant,” he nevertheless found that the absence of such information did “not necessarily undermine the reliability of the AFGP Documents.”

In the end, Judge Urbina held that there was “substantial evidence” of the “authenticity and reliability” of the AFGP Documents and that “[t]hese internal al-Qaida records indicate that after applying to attend an al-Qaida training camp, [Alsabri] did, in fact, receive such training.” Based, in part, on this evidence, Judge Urbina denied Alsabri’s habeas petition. Al-Sabri appealed.

Three Entries in the 92-Pages of Captured Documents

An evaluation of Judge Urbina’s treatment of the captured documents becomes more interesting when the details on which the government relies are fleshed out in the appellate filings and in the unredacted version of the documents. Three pages are at issue.

Authenticity of Documents in Guatemalan Genocide Case

Emily Willard has a recent post on Unredacted (the blog of the great National Security Archive) called "Genocide Trial against Rios Montt: Declassified Documents Provide Key Evidence" which discusses documentary evidence used by a Guatemalan court to determine that there was sufficient evidence to "charge former dictator Efrain Rios Montt with genocide and crimes against humanity." The post notes that a

key piece of evidence to prove chain of command that was presented at the trial is the collection of secret Guatemalan military documents, Plan Sofia. The official Guatemalan government records of this counterinsurgency operation prove the criminal responsibility of senior government and military officials in the country's genocide by detailing how the chain of command functioned during the war, says National Security Archive senior analyst Kate Doyle. [See Doyle's first-hand account of her testimony, here.] The 365-page document was smuggled out of a secret military archive, given to Doyle and made public by the National Security Archive in December of 2009 after a lengthy authentication process.

The whole story is interesting, but the authentication issues are particularly relevant for the topic of captured documents where there are frequently questions of authenticity (see, for example, discussion here).  As the National Security Archive described earlier, Kate Doyle testified in the Guatemalan case about "the authenticity of the documents" based on "months of analysis, which included evaluations of letterheads and signatures on the documents and comparisons to other available military records."  Ultimately, the analysis concluded that "these records were created by military officials during the regime of Efrain Rios Montt to plan and implement a 'scorched earth' policy on Mayan communities in El Quiche."