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Bilal Hussein and the Looming Battle Over Iraqi Sovereignty
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Michael Wahid Hanna,
World Politics Review,
4/23/2008
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The U.S. military's decision last week to release Bilal Hussein, an Associated Press photographer who has been held by U.S. military forces since April 2006 on accusations of links to terrorism, was not just a blow to the U.S. military's case against one prisoner. The announcement by the U.S. military, which followed the rulings of an Iraqi judicial panel granting Hussein amnesty, also raised a question war proponents may not want to answer. Namely, if the sovereign institutions and political processes that the U.S. troop surge was supposed to help foster actually take hold, will the United States respect them?
This question highlights the inherent tension between a military occupation that envisions complete freedom of action for a foreign military force in conducting offensive operations and a nation-building exercise that seeks to establish and fortify national and local institutions. The trajectory of the case of Bilal Hussein is a further reminder that the Iraqi government's sovereignty is still limited and that ultimate authority rests with the U.S. military.
However, even the limited sovereignty of the current Iraqi government will produce decisions that conflict with the stated aims and goals of the United States, and the frequency of such conflicts will rise as national institutions gain greater capacity and confidence.
The controversy surrounding Bilal Hussein came into focus at a time when a burgeoning insurgency had overwhelmed the war effort and many supporters of the war in the United States sought comfort in domestic political jousting that ignored realities on the ground. Hussein's work was targeted by right-wing blogs following his November 2004 coverage of the U.S. assault on Fallujah, and he was later portrayed as an active disseminator of terrorist propaganda. As a result, his case has been fraught with political overtones. Following his detention in Ramadi, the U.S. military alleged that he was in possession of bomb-making materials when he was detained, he had conspired with insurgents, and that he offered to provide forged identification for an accused terrorist who was wanted by the U.S. military.
The release of Hussein was set in motion by the unexpected decisions of an Iraqi judicial panel. The text of the decisions has not been made public and there is no way to ascertain whether the panel touched upon the substance of the charges against Hussein or simply determined that one or more of the amnesty provisions applied in his case. The decisions were based on the provisions of an amnesty law passed by the Iraqi parliament in February 2008, which, along with legislation on provincial powers and the 2008 national budget, was widely hailed by the Bush administration as concrete evidence of significant political progress. The amnesty law under which the review of Hussein's case arose provides for the release of detainees held in Iraq except for those accused of the most serious crimes. Its passage has long been a goal of the Sunni political parties and of the Shiite Sadrist bloc since their constituencies make up the bulk of the detainee population.
The legislative package was also seen as satisfying certain of the 18 specific legislative, political and security benchmarks established by the United States in the Iraq Accountability Appropriations Act of 2007; the benchmarks were formulated to provide criteria by which to assess the political progress towards national reconciliation and accommodation, which was the rationale for the U.S. troop surge.
Following the announcement of the initial Iraqi decision, the U.S. military indicated that it had no immediate plans to release Hussein and that such a decision would depend on an assessment by the U.S. military as to "whether he remains a threat." However, after receiving the Iraqi legal rulings, the U.S. military "reviewed the circumstances of Hussein's detention and determined that he longer presents an imperative threat to security" and ordered his release from custody.
Although the amnesty law contemplates grants of amnesty for any eligible Iraqi detainee, the U.S. military cannot be compelled to abide by an Iraqi legal judgment dictating the release of a detainee. The United States bases this overarching authority on the broad mandate granted to it by successive U.N. Security Council resolutions. The U.S. characterization of current hostilities in Iraq as an "international armed conflict" has also been interpreted to require only that detainees be afforded truncated military review. While the legal stance of the United States has been criticized by the International Committee of the Red Cross and other human rights organizations, in practice the United States wields de facto veto power over the detention regime.
The potential ramifications of the Hussein decision were presaged by the more muted controversy of "on-hold" detainees, namely those detainees who remain in U.S. military custody following dismissal of their cases by the Central Criminal Court of Iraq. According to the United Nations Assistance Mission for Iraq, as of December 2007, there were 367 such detainees who were held in U.S. custody for "imperative reasons of security."
While the issue of on-hold detainees has drawn little public scrutiny, the high-profile nature of the Hussein case ensured that a decision by military authorities not to release him would have undermined confidence in the fledgling Iraqi government among several key parliamentary blocs and in the eyes of many Iraqis. Even if one were to accept U.S. legal arguments about the right to detain individuals even after an Iraqi grant of amnesty, in the current context, not releasing Hussein would have opened the United States to charges of hypocrisy, accentuated the limited nature of Iraqi sovereignty and cast a harsh light on the United States as an occupying power.
In this regard, the decision to grant Hussein's release averted a potential clash but did not represent a shift in the U.S. stance on its legal authority to continue the detention. The potential for conflict between the Iraqi government and the U.S. military will increase dramatically as Iraqi governmental institutions mature and as tolerance for the direct exercise of power by the United States wears thin. Even assuming best-case scenarios for the withdrawal of U.S. combat forces from Iraq, U.S. leaders will have to balance their own security concerns with the increasing demands of Iraqis. This essentially diplomatic responsibility will be shouldered to a large degree by military leaders, since future disagreements and conflicts are likely to center on the security requirements of the U.S. military, including detention practices.
These looming conflicts are heightened by the fact that the current Iraqi government, which has yet to fully embrace the need for political reconciliation, is bound to make decisions that run contrary to U.S. goals in the political arena. This is not to imply that the Iraqis are incompetent, but is a realization of the fragmented nature of the current Iraqi political system and an acknowledgment of the potential for sectarian and ethnic considerations to drive decision-making in dangerous directions.
The case of Bilal Hussein raised profound issues about the limits of the Iraqi government's sovereignty. While the decision by the U.S. military to release Hussein averted a potential embarrassment, the fact that such authority is vested with the United States is emblematic of a long-standing issue that is likely to become a growing source of Iraqi nationalist outrage and a domestic political liability for the Iraqi government.
Michael Wahid Hanna is a Program Officer covering international affairs at The Century Foundation. This was first published by World Politics Review. |
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