The U.S. military is rushing to build criminal cases against some 5,000 detainees it deems dangerous — including suspected members of al-Qaida in Iraq — because the proposed security pact with Iraq would end its right to hold prisoners without charge.
The agreement, which is to be voted on by Iraqi lawmakers Wednesday, is primarily intended to set a timetable calling for American troops to leave Iraq by the end of 2011. But it also calls for control of security matters to shift to Iraqi authorities.
If passed, the deal would mean U.S. troops could no longer hold people without charge as they have since the 2003 invasion that ousted Saddam Hussein. Beginning Jan. 1, all detentions would have to be based on evidence, and the U.S. would have to prosecute prisoners in Iraqi courts or let them go.
"At the end of the day, if there's not enough facts to justify a court case, then we'll have to release," said Brig. Gen. David Quantock, the commander of the U.S. detention system in Iraq.
Evidence in only a few hundred cases
The Americans have evidence against only "a few hundred" of the most dangerous detainees, Quantock said, leaving open the possibility that thousands could find themselves back on Iraq's streets soon.
"We have a lot of work to do," he said.
Part of the challenge stems from differences between the U.S. and Iraqi legal systems. In the United States, forensic evidence is widely used in the courts. Not so in Iraq.
"We've got a number of guys right now that are covered in TNT (explosive residue). However, that's not admissible in Iraqi court," Quantock said. "What wins the day in Iraqi courts today is two eyewitness statements or a confession."
The U.S. is training Iraqi forensic specialists and pushing to make such evidence more acceptable in court. Iraqi judges are slowly bending, but it is expected to take time before forensic evidence wins wide approval.
The transition comes amid a marked improvement in security that has boosted the confidence of Iraq's government and allowed security-based detention to give way to a civilian justice system. It would also mark a major step toward shutting down a detention system that was tainted by the scandal at Abu Ghraib prison outside Baghdad, where U.S. guards abused detainees.
Most detainees not considered dangerous
U.S. forces are holding around 16,500 detainees in all. The largest facility, with some 12,900 prisoners, is at Camp Bucca near the city of Basra, some 340 miles southeast of Baghdad.
Camp Cropper, on the sprawling U.S. base near Baghdad International Airport outside the capital, serves as the system's logistical headquarters and houses some 2,000 prisoners. All detainees entering and leaving U.S. custody pass through Cropper.
On a recent trip to the base, Associated Press journalists saw detainees dressed in yellow pants and shirts or traditional robes chatting outside low-slung, peach-colored barracks. Some ritually washed their hands and feet before afternoon prayers, while others set out laundry to dry in the midday sun. Guards kept watch from towers looming over a double row of barbed-wire fences.
The vast majority of those in U.S. custody are not considered dangerous, so the military is focusing its legal efforts on the 5,000 it deems a threat.
Iraq's government will receive the names and other details of those in U.S. custody so it can issue arrest warrants for some of them. Quantock said he is confident that either the U.S. or Iraqi government will muster enough evidence to keep many of the most dangerous individuals behind bars.
Releasing detainees poses challenge
But releasing the other 11,000 prisoners, who are not considered a serious threat, also poses a challenge.
The security agreement before Iraq's parliament stipulates that detainees be let go "in a safe and orderly manner."
U.S. and Iraqi officials are mindful of the dangers posed by dumping thousands of suspected insurgents, even if minor players, into communities already grappling with high unemployment.
"The fact that they are going back to their cities and homes might complicate the security situation," said Haider al-Ibadi, a Shiite lawmaker with close ties to Prime Minister Nouri al-Maliki. "But we can do nothing to stop this because the authorities cannot arrest or keep any person in custody without evidence."
The U.S. has already released some 16,000 detainees over the past year, and plans to continue freeing prisoners at an average rate of 50 a day — 1,500 a monthly
"We think the communities can absorb it at about that rate — any faster would put us at risk," Quantock said. "We've sacrificed too many coalition lives, too many innocent Iraqi lives, just to let it all go for naught by just forcing mass releases out to the population."
Still, some local leaders have voiced unease with the pace and scale of prisoner releases.
"Some of the detainees have come back and caused problems," said Sheik Hussein Khamis al-Souhel, a tribal leader in the heavily Sunni Arab district of Abu Ghraib on Baghdad's outskirts. He said he worries about the release of more prisoners.
Thousands have passed through system
The U.S. set up the detention system after toppling Saddam's regime as a way to hold suspected insurgents. Those considered a security risk could be kept behind bars without charge as long as the U.S. deemed necessary.
Since the war began, some 100,000 people have passed through the system, with the prisoner population peaking at 26,000 in mid-2007.
Now, as a measure of stability takes root, commanders are looking ahead to slowly dismantling its detention facilities before shutting the system down when the last American troops head home.
Camp Bucca is to be closed by mid-2009 and its prisoners transferred to a new facility under construction at Taji, north of Baghdad. That prison will be handed over to the Iraqi government.
Quantock said the U.S. hopes to reduce Camp Cropper to a "small footprint" by the end of next year, but it will remain open as long as American troops capture suspected insurgents.