For more information: Author Q&AYou handled the first trial of a U.S. soldier in Iraq. What stood out from “normal” trials? Trials in Iraq were a logistical nightmare. We couldn't take for granted any of the things you come to rely on when trying a case back home, like having an actual courtroom in which to conduct the trial. My JAG team actually had to pick up hammers and help to build a chapel that would double as Camp Anaconda's courthouse. We also were responsible for gathering the evidence scattered throughout the hostile Sunni Triangle, interviewing the soldiers and other witnesses wherever they might be located, locating a translator, and arranging sleeping quarters and transportation for the judges, the defendants, and the defense attorneys. The lack of reliable telephonic communications with the outlying units meant that were constantly traveling to different camps to figure out what had happened. We also had to rely on Iraqi civilians who didn't speak English and who usually did not trust us and had mixed feelings about cooperating in the investigation and trial. How did you balance writing the book with maintaining attorney-client confidentiality? This was difficult, and there is more information that I would have liked to include in the book, but I could not without the Army’s waiving the attorney-client privilege as to certain communications. I could only discuss information that I learned outside of privileged and confidential communications or that I initially learned in confidence and the Army later had publicly revealed the information, essentially waiving the privilege if it ever existed. For example, if I had a conversation with a commander who was asking for legal guidance, the conversation clearly is privileged. Almost all of the relevant information I gleaned from those conversations, however, was later disclosed by the Army, whether in court proceedings, FOIA responses, or media statements, and is now publicly available. By way of example, I mention in my book that Sassaman told Gen. Odierno about the drowning cover-up before Sassaman told Col. Rudesheim, essentially by-passing Sassaman’s chain-of-command. That information, however, was first revealed years ago by Sassaman himself when he gave an interview for a New York Times Magazine article. As mentioned above, for a communication between the client and the lawyer to be privileged, the communication must originally have been made in confidence. Nearly all of the conversations with commanders recounted in my book either did not deal with legal advice or occurred when other soldiers or civilians were present, so no confidence attached to the communications. For example, when I tell Maj. Gwinner that he needs to dismantle the detainee holding facility they have erected at the 1-8 battalion headquarters, there were other soldiers and a civilian present, and so my advice was not given in confidence. More importantly, I was only reiterating official Army orders that were neither classified nor confidential. Why/when did you start suspecting that 1-8 was involved in brutal acts and cover-ups? The initial criminal investigation involved a dead Iraqi civilian, allegedly drowned by soldiers in Lt. Col. Nathan Sassaman’s unit. At first, the soldiers denied any involvement with the incident. Then, after the soldiers admitted that they had lied and that they had pushed the civilian into the Tigris River, they denied that the civilian had drowned. As the investigation continued, we detected a cover-up, which eventually led up the chain to Sassaman. 1-8’s involvement with other brutal acts within our region didn’t end with the drowning. As the legal officer, I handled locals’ claims against our units. When I caught wind of several claims that we’d executed civilians around the same time as the drowning incident, I grew suspicious. I began investigating 1-8 soldiers for brutal actions outside the drowning case. The platoon involved in the drowning incident turned out to be the same platoon involved in the alleged execution of two suspected insurgents who had been taken into custody. I pieced together enough information to warrant a full-blown criminal investigation, and to convince senior 4th Infantry Division leadership that there was something terribly wrong with the events of January 2–3, 2004. Higher ups at the division level said they had assigned an investigator who was looking into the matter. By the end of the week, I hadn’t heard anything, at which point I learned that division had deemed the entire matter inconclusive. In Drowning in the Desert, you discuss the treatment of detainees, along with evidence collection that occurs when they’re detained. How did this unfold during your year in Iraq? When we arrived in Iraq, there wasn’t a clear directive about detainee treatment so I tried my best to implement standards outlined in the Geneva Convention. Getting the units on board was difficult because many commanders didn’t feel Geneva Conventions applied because the Iraqis we were taking into custody weren’t lawful combatants. Consequently, there was a huge grey area concerning detainee treatment. Even after the division order came down directing us to treat detainees in accordance with the spirit of the Geneva Convention, most units weren’t open to changing what they were already doing. There was tremendous tension between the twin goals of defeating the insurgency and winning the Iraqis’ hearts and minds. It was incredibly frustrating. Convincing commanders and soldiers that evidence collection was important was an even greater challenge. After all, the soldiers in the field were not trained law enforcement officers, so we essentially were asking them to take on additional responsibilities. There were literally hundreds, if not thousands, of detainees who were being held without any evidence of their criminal acts or membership in the insurgency. As a JAG, I first tried to convince the leadership (division, brigade, and battalion level) that accurate evidence collection was crucial, if not imperative, to our operations. I succeeded marginally. While most leaders concurred in the principle, our definitions of “accurate” differed greatly. Some leaders (for example, 3-29 Field Artillery’s commander) got it right away and his understanding translated down to his lowest soldiers, while the sloppy results at other battalions usually reflected their leadership’s different take on the matter. I thought I’d solved it when we I persuaded Col. Rudesheim to have 3-29 FA and a small unit of Military Police set up and run a centralized brigade detention facility. Unfortunately, this only lasted a few months because Division ordered all brigade detention facilities closed. This was Division’s ill-conceived answer to units holding detainees too long. Instead, Division ordered us to ship all detainees straight to Division’s detention facility in Tikrit. Practically speaking, this was an unrealistic solution. As anyone at brigade level and below could have guessed, units instead reverted to keeping detainees at their unit locations (now without any oversight) and sending up only what they considered to be major offenders or higher-value targets every few days. No battalion or company was going to make a road trip each day up to Tikrit if they could avoid it. Meanwhile, Division thought they had “solved” the problem because they saw smaller numbers of detainees. In other words, blissful ignorance on their end. Minus the accountability that the centralized brigade detention facility afforded us, I did my best to stay on top of the units and who they had detained. We’re talking 3,000+ soldiers here. I did this by constantly comparing the daily action reports with accompanying statements from the unit. I also did a version of this when civilian claims came in. I didn’t bother with petty inconsistencies (there simply wasn’t time), and I tried to focus on big inconsistencies. In other words, they needed to know that someone, anyone, was watching them, and would be asking questions when they didn’t provide the right information; that there were consequences, even if it was just a nagging JAG. When you’re a company commander or a platoon leader, having the JAG in your business is a pretty good incentive not to repeat the mistake in the future. At least, I hoped it was. Why was Sgt. 1st Class Tracy Perkins’s sentence lighter than that of PFC Lynndie England’s? There are several reasons. The main ones are:
Your year in Iraq included work toward rebuilding the Iraqi legal system. How did you work toward this goal, armed with the knowledge that the Army’s own legal system needed improvement itself? At first, it was exciting to think I could help rebuild Iraq’s judicial system. At each new location, I eagerly met with the local judges, conducted the requisite review of their caseloads, expedited the finances for facility repairs, and ensured the courts were up and running as soon as practicable. I would relay their concerns to Division and inevitably we would hit a wall. Division would stop responding to my requests for this or that, and their lack of response had a ripple effect. With few answers to the judges’ mounting concerns, the meetings seemed to only compound their frustration. You mention the capture of Saddam Hussein in your book, but not your role in collecting evidence against him. What evidence did you collect? My brigade covered the town of Ad Dujayl, so I was responsible for the civilian courthouse there. I made routine trips to that courthouse and initially received the claims in the area. Because the locals knew I was the legal officer, they began handing me numerous sheets of paper (in Arabic). Initially, I thought they were more claims, but I could tell by the numbers and dates that they involved incidents from the 1980s. When I told Division HQ, they said to disregard the sheets of paper, but I was not convinced and had an interpreter translate each for me. I then transcribed the translations and attached them to each of the original papers. The claims described a massacre in Ad Dujayl, directed by Saddam and one of his local henchmen, which occurred in the early 1980s. They were extremely tragic accounts of boys and men who were rounded up and never seen again. Some witnesses described seeing the men shot and killed. We had not yet caught Saddam, but I knew these types of accounts and claims could be used against the old regime as evidence of crimes against humanity. I contacted Division again and described what I had discovered, then suggested that the evidence be forwarded to the Corps level in Baghdad. I even suggested the name of a particular Coalition Provisional Authority representative whom I’d tracked down in Baghdad, and who was extremely interested in the information I had collected. Saddam Hussein was ultimately tried and convicted for the massacre of citizens in the town of Ad Dujayl (sometimes spelled Al Dujayl or simply Dujayl) in 1982. Witnesses were rounded up to testify against him based on those initial claims I collected in August 2004. What are Claims Days, and what role do they play in developing stronger relationships with the Iraqi people? Claims are the method by which the Army compensates locals for any incidental property damage or personal injury resulting from our operations. Claims are an integral part of maintaining a good relationship with locals and mitigating resentment over our presence. For the first 4 months of my deployment, the Army did not officially pay any claims in Iraq, under the theory that we were still in a combat or ”war” phase of the mission, so all claims were technically collateral damage. When the claims process was finally approved, it took another month for the Army to get it underway because the Air Force JAG Corps was initially assigned to administer the program. Since we hadn’t seen any Air Force JAGs in Iraq yet, we knew, long before it became official policy, that claims would fall to our responsibility. Using the Commander’s Emergency Relief Program Funds, we started paying claims before we were officially authorized to do so, because we needed to keep the peace with the locals and make a show of our good faith. How were you able to recall so many conversations and events for the book? I kept a journal during my tour. I also retained personal copies of e-mails and official documents from the files. More recently, the Army produced voluminous official records to the media and the ACLU in response to Freedom of Information Act requests, which helped me fill in some gaps. I also have spoken with some of the people who have contemporaneous knowledge of the events, such as Tom Roughneen, to help me fill in some gaps. |