U.S. military officials report that Iraqi judges are frequently demanding the release of captured insurgents and death squad members -- including some of the most-wanted suspects in the nation -- making for a chronic cycle of "catch and release" that defense insiders say is stoking rising levels of violence.
Iraqi judges often cite insufficient evidence as justification for letting suspected killers go free, according to military officials in Iraq and defense observers who have visited recently. Sometimes judges allude to dubious orders from members of Prime Minister Nuri al-Maliki's Cabinet to release one individual or another, says one insurgency expert recently in Iraq.
Vast numbers of Iraqi innocents have gotten swept up and detained during U.S.-led operations over the past three-plus years. Sometimes it takes days, weeks or even months for them to be let out, some military officials concede.
But now there is mounting concern among American officials about known insurgents and thugs, and even some of their ringleaders, being set free at the behest of Iraqi courts in the midst of a growing war.
The repeated release of insurgents back onto the streets endangers civilians, puts Iraqi and foreign troops at higher risk and, most ominously, threatens to perpetuate and further expand the violence that has roiled the Persian Gulf nation, according to defense officials and security experts.
"We keep releasing them and we fight the same guys over and over again," one U.S. military official, speaking on condition of anonymity, told Inside the Pentagon last week. "It's negligent. It's culpable negligence."
Given the billions of dollars the Defense Department has spent on countering roadside bombs -- an insurgent weapon of choice that has increased in lethality over time -- "how about [if we] stop releasing the guys who are putting them in [the ground]?" added this official, betraying rising anger as the U.S. death toll in Iraq creeps toward 3,000. "How about that?"
About one-third of the U.S. casualties in Iraq come from so-called "improvised explosive devices" and these IEDs account for approximately 70 percent of the deaths, according to one Army officer. Armed with nearly $2 billion this year alone, a Joint IED Defeat Task Force aims to field better technologies and tactics to detect and disable the makeshift bombs.
In an effort to pacify warring factions, Maliki's government has at times conducted significant prisoner releases from detention centers, including those at Abu Ghraib and Camp Bucca. In June, Iraqi national security adviser Mowaffak al-Rubaie told CNN about 2,500 prisoners not convicted of crimes would be set free as "a goodwill gesture toward our people in our country to show that the government is serious about the national reconciliation."
But with bloodshed on the rise, the net effect of such goodwill gestures is in doubt.
"Violence against us goes up after wholesale prisoner releases," says one officer with multiple tours in Iraq, who declined to be named in this article.
Perhaps equally troubling are instances in which individual detainees are routinely released, often after waiting out a six-month period in captivity.
Explanations for the trend abound: physical evidence is increasingly hard to come by; eyewitnesses refuse to testify in court for fear of retribution; and U.S. military officials are reluctant to press cases against minor players if it means revealing sensitive information about local intelligence sources or collection methods.
At the same time, detainees are more and more reluctant to provide useful intelligence to interrogators, since they can relatively easily run out the clock. There is little incentive for them to bargain for an even shorter time behind bars by passing along tips to their questioners.
Though the more mundane catch-and-release cases make for fewer headlines, defense officials and experts are beginning to cite the trend as a major contributor to Iraq's upward spiral in violence.
The officer with multiple Iraq tours cites complaints from "our soldiers and Marines about repeatedly picking up the same shooters [and] IED-layers."
"I have heard from the field that they have been seeing an influx of previously captured insurgents returning to their areas," reports an Army officer with prior Iraq experience.
Says yet another: "We already defeated the insurgency. We just let them all back out."
A fourth officer who has served in Iraq echoes that view, noting Marine Corps commanders have estimated there are about 1,500 insurgents in the restive Anbar Province, to the west of Baghdad. With Marines killing or capturing an average of about 300 insurgents in Anbar every month, the continued volatility of the western region raises a question.
"Either it's an incredible [insurgent] regeneration rate or we just keep letting them go," said this officer.
Bing West, a former Marine who served in Vietnam and frequently visits Iraq, finds the phenomenon troubling.
"The company and battalion commanders and police chiefs I've spoken with have expressed frustration and resentment at the remarkably high rate of detainees who are turned loose," West told ITP following a trip to Iraq this fall.
During a one-year period between June 2005 and June 2006, approximately 16,770 Iraqi prisoners were processed at the theater level and about 11,100 were released, according to Lt. Col. Keir-Kevin Curry, a Multi-National Force-Iraq spokesman. The figures do not include those taken into custody but set free at lower unit levels, without being sent up to theater-level detention for potential Iraqi prosecution.
Since April 2004, following a reorganization, the Central Criminal Court of Iraq has convicted 1,501 insurgents apprehended by U.S.-led coalition forces, Curry told ITP this week.
Curry speaks for Task Force 134, which oversees detainee operations and tracks the rate at which Iraqis have been captured and taken into detention more than once. The military calls the phenomenon of repeat offenders "recidivism."
Between nearly the start of the occupation in 2003 and Dec. 2, 2006, the recidivism rate for Iraqis taken into custody by U.S.-led forces was 6 percent, according to Curry. He was unable to depict how the rate has changed, if at all, over time.
Questioning the numbers
But several officers serving in Iraq or recently there cast doubt on the recidivism figure. Although the low recidivism rate appears on official Multi-National Force-Iraq, or MNF-I, briefing slides, some officers say they have seen no evidence to back up the number, which appears at odds with field experience.
The statistics "are very suspect," says one officer with multiple Iraq tours. "The rate is much higher, we believe, than official stats [suggest]."
One reason may be that Task Force 134 tracks only those who have been captured more than once. It does not -- and perhaps cannot -- track how many insurgents pose a continued threat to Iraqi communities and coalition security forces after being seized and released just once, sources noted.
"People in the fight can tell what's wrong," says another such officer. "The problem is masked by B.S. statistics. [MNF-I officials say,] 'The recidivism rate is low.' But they didn't even keep records at Abu Ghraib."
For some troops on the tip of the spear, it appears those at the top reaches of U.S. military command are content with the upbeat statistics and have turned somewhat of a deaf ear to the reality on the ground.
"They get detached from it, like a member of a corporate board," says one.
A desire to hand over greater national control to the Iraqis, in keeping with Bush administration policy, has complicated the issue. Operating in a state of war, U.S.-led troops continue to round up insurgents. But in Iraq, many captives are subject to an Iraqi justice system that affords due process to those arrested, much like in the United States.
Insurgents and members of death squads have become increasingly adept at working the system.
"They're very smart now. They're not putting all their tools of destruction inside their homes," says one Army officer. "So now you're going on, 'He said, she said.' . . . And those things are not getting prosecuted."
The more powerful an insurgent leader, the less likely it is he will be caught with sufficient evidence to keep him in prison -- much like mafia dons and their more expendable hit men, according to several officials interviewed.
"Why is it the top 10 people I'm going after have all been to Abu Ghraib?" asks one officer. Violent individuals know they can wait out a six-month stay in prison, resist interrogation, and perhaps be let out to rejoin the fight, said this source.
"That's why they call these places gladiator camps," says another source, an Army officer who has served in Iraq. "They rest up, they watch TV and they're released. And they're ready to go again."
In fact, the Iraqi court system has released some of the nation's most-wanted killers over the past year, several officials noted.
On Tuesday, Sen. Jeff Sessions (R-AL) raised the issue during Robert Gates' nomination hearing to replace Donald Rumsfeld as defense secretary.
He cited a recent Marine Corps Times article reporting "that one guy, known as 'the beheader,' had been released, [and] another serious bomber had been released, and already his signature bombing technique had reappeared in the community."
The trend is nothing new. The late Jordanian-born terror leader Abu Musab al-Zarqawi was reportedly captured and released in Fallujah in 2004, before falling victim to a U.S. air strike in June. And in August 2005, an insurgent in Mosul -- who had just been released from captivity "for lack of evidence" on charges of planning the assassination of an Iraqi army leader -- shot an American battalion commander three times in the arm and leg (ITP, Dec. 1, 2005, p1).
Smaller fish, released in significant numbers, also are contributing to the violence, the senator suggested.
"In addition to freeing innocents, justice requires that those who are guilty be able to be punished, and punished severely if they commit severe crimes such as attempting to blow up innocent men, women and children," Sessions said. Following a visit to Iraq, the incoming Senate Armed Services Committee chairman, Sen. Carl Levin (D-MI), "indicated from [discussions with] the Marines they felt that dangerous prisoners were being released," Sessions said.
Gates assured the Alabama senator he would look into the matter, if confirmed for the post. At press time (Dec. 6), the Senate did just that in a 95-2 vote (see front-page box).
Sessions hinted the problem might stem, in part, from a dearth of Iraqi prison beds. The Iraqi prison system is about 100,000 beds short, one U.S. military official told ITP last week.
"The best we can calculate [is] that on a per-capita basis, Iraq has one-ninth as many prison beds as the state of Alabama," the senator said this week. "To me that indicates that we really are not there yet."
Unless the Iraqi justice system can keep sectarian fighters and insurgents off the streets, the people of Iraq "will turn to militias and other unauthorized groups to protect their own safety," Sessions told Gates.
Corruption also appears to play a role.
During a visit to Iraq last month, Kalev Sepp, a former Special Forces officer now on the faculty of the Naval Postgraduate School, heard U.S. military advisers complaining that minor officials at Iraqi ministries were frequently calling judges to press for the release of specific detainees. The Iraqi officials sometimes assert they are acting on the authority of a Cabinet minister, though the veracity of those claims is often unclear, Sepp told ITP.
"The insurgency is really good at buying off Iraqi officials," one military officer said in an interview last week.
(Iraqi ministry officials also routinely call Iraqi army commanders to direct where they should position their forces, often to protect their private business interests, the U.S. advisers told Sepp.)
'Profound' systemic problems
At the same time, it has proved relatively difficult to prosecute criminal cases before even the most upstanding Iraqi judges.
Coalition forces in Iraq must move detainees from forward operating locations to regional facilities and develop a "prosecutable case" within just a few days of capture.
At theater level, a Task Force 134 Magistrate Cell staff judge advocate reviews each case for possible detainee release or continued retention as an "imperative security threat," Curry said. The Magistrate Cell may then refer a captive to the Central Criminal Court for prosecution or to a Combined Review and Release Board as a security internee, he said.
Typically more than half of those captured across Iraq are released during the first steps of judicial review, according to MNF-I data cited by one Army official.
Standards of evidence for criminal cases were raised late last year and now demand two direct-witness statements; detailed diagrams of the crime scene; a chronology of events; multiple photographs of the suspect and target area; the location of any contraband found; and the methodology and results of any explosives testing performed, ITP reported in December 2005.
Once a criminal case goes before the court, a judge is given enormous latitude to decide it based on the "weight of evidence," and may base a finding on any of three, often conflicting sources: the 1971 Iraqi Law on Criminal Proceedings, religious texts or precedents established in prior cases.
Cognizant of the hurdles to achieving a conviction, prosecutors often simply refuse to refer a case to the central court, officials tell ITP.
Yesterday (Dec. 6), the Iraq Study Group issued a report noting "profound" problems in the Iraqi justice system.
"Programs led by the U.S. Department of Justice to establish courts; to train judges, prosecutors, and investigators; and to create institutions and practices to fight corruption must be strongly supported and funded," recommends the group, co-chaired by former Secretary of State James Baker and former House Foreign Affairs Committee Chairman Rep. Lee Hamilton (D-IN). The panel also calls for better courthouse security and improved protection for judges and witness.
Not only are U.S.-led forces failing to keep insurgent leaders behind bars; they are also finding it hard to kill the most seasoned fighters.
Between March 1 and Sept. 15, just five "high-value individuals" have been captured in Iraq and two have been killed, according to one U.S. Army officer.
"This seems pretty low, based on the weight of effort in this area," the officer tells ITP.
Over the same time period, a total 2,017 enemy fighters were killed in Iraq, according to MNF-I data. -- Elaine M. Grossman