On Dec. 26, 2006, the Appellate Court of the Iraqi Special Tribunal announced that Judge Awad Hamad al-Bandar, along with Saddam Hussein, was to be put to death. With an initial filing made immediately that night and over the next two weeks, the writer and Carl Messineo of the Partnership for Civil Justice, working with former U.S. Attorney General Ramsey Clark, sought emergency relief to stop the U.S. government from transferring Judge Bandar to what was an extra-judicial killing.
Judge Bandar was sentenced to death in a show trial, along with Hussein, in the absence of a competent tribunal or due process of law. The federal courts, including the U.S. Supreme Court, refused to prohibit the transfer of Bandar, who was undisputedly in U.S. physical custody, based on the U.S. government’s argument that its operations are beyond the reach of U.S. courts when acting as, or as in this case renaming itself to be, a multi-national force. Judge Bandar was hung to his death early Monday morning, Jan. 15, 2007.
President Bush has announced he is “disappointed” with the hangings of Saddam Hussein, Judge Awad Hamad al-Bandar and Barzan Ibrahim, adding that it “looked like kind of a revenge killing.” This might be seen as strange from the man who hung them. Bush added that the real problem with the hangings was the appearance, that it made it harder for him to “make the case to the American people.” This part was true.
The issue for Bush is not really the hangings, but rather the reality of the hangings that was revealed to the world. The
|
First one hanging, and then two more, and the press has filled columns with the U.S. government’s self-serving protestations. The media dutifully reports this fiction of concerns, regret and criticisms. To read these protestations was remarkable to us, as we were simultaneously reading the U.S. government’s briefs filed in federal court opposing our emergency attempts to obtain due process for our client Judge Bandar, who was to be hung.
Judge Bandar, a civilian, was being held in the exclusive physical custody of the U.S. government at Camp Cropper. The U.S. government controlled his fate, whether he lived or died. Had it really any concerns about the hangings, the fact that the federal court system in the United States was being presented with such matters was easily enough to stave off execution. But, the U.S. government actually wanted them dead. Further, it is adamantly opposed to there being any restraint on its lawless conduct in Iraq.
The U.S. government in its military operations has sought to neutralize itself from the authority of the U.S. courts simply by renaming itself as the Multi-National Force-Iraq (MNF-I). It presented this fiction to the court claiming that the U.S. government did not control military operations in Iraq. This may be news to you, news to most of the world; especially news to the Iraqis.
That assertion may be news even to General George W. Casey, Jr., identified as the commander of MNF-I who has said repeatedly that he is subject to the authority, direction, and control of the Commander, U.S. Central Command (CENTCOM) and that the MNF-I is “a subordinate command to CENTCOM.” Asked in his Senate confirmation hearing whether there would be any limits on CENTCOM’s authority due to the international nature of the MNF-I, he replied that there were “none at all.” He added, there is “no reporting chain that goes back to the United Nations. … My chain of command is through the secretary of defense and the President.”
The U.S. war machine, which has already sought to exempt itself from restraint or accountability worldwide, has now untethered itself from the one last legal hold on it, the U.S. courts. By so doing, it asserts that the U.S. courts do not have jurisdiction to address claims lodged against it. It can take up arms anywhere against any civilians, capture, hold them, torture them, have them killed, and merely by renaming itself can eliminate any threat of judicial oversight or intervention.
The U.S. government also simultaneously argued that any stay in the rendition to death of Judge Bandar would interfere with the “exclusive authority” of the President as Commander in Chief and “unitary chief executive.” Maintaining its open rejection of any check or balance against imperial authority, the government argued this was a matter of foreign affairs and military operations exclusively for President Bush to determine with no oversight.
U.S. puppets and propaganda
Continuing his fiction spun to the people of the United States, Bush has launched a component campaign of his decision to inflict deeper death and destruction on Iraq and U.S. servicepeople. He has begun to publicly criticize his puppet, Prime Minister Maliki. This is to ensure that any failure of the puppeteer’s actions and plans, and resulting public outcry, can be laid at the feet of the puppet. Thus, his critique of the hangings.
Scapegoating their own puppet is not an unfamiliar program to the White House and Pentagon. The U.S. government supported its puppet Ferdinand Marcos in the Philippines until the people rose up and drove him out. The United States supported its puppet Jean Claude Duvalier in Haiti until the people rose up and drove him out. A little repudiation of the failing regime, at the stage of its dethronement, is a tactic borne of practicality.
Had things gone according to plan in Iraq, minus the all-revealing video of the execution, all three men would have been strung up by the U.S. government, and it would have been reported as a sovereign act of their puppet Iraqi government and asserted to have been carried out with appropriate gravitas and “dignity.” We would have been spoonfed the fiction of the conquerors’ honorable execution of the captured head of state—a romantic notion of barbaric “victor’s justice,” harkening back to the Roman Empire.
News of the hangings was fed to and reprinted by the press, mostly lies except the fact of death—all reported with just as little responsibility as the war and the show trial that preceded them. The carefully packaged and edited news of the first hanging was betrayed by the cell phone video, its grisly appeal overwriting the accepted constructed news story.
Because of a reporting quirk, the plan of the official propaganda machine was exposed. The initial news stories on the date of Saddam Hussein’s death, broadcast throughout the U.S. media in orderly fashion, contained so much “truth” as to report that there were three hangings at first. This proves that the coverage was not coverage at all but rather another example of reporters delivering a script obviously written in advance and handed to them earlier by government agencies. Our client, Judge Bandar, was reported to have been killed on Dec. 30 along with Saddam Hussein. This was reported as a fact by virtually all the media outlets. But the plan had changed at the last minute and the reporters in the propaganda machine were not informed so they all reported his death as a fact.
But Judge Bandar was kept alive only to be brutally killed this past Monday morning instead. The timing of the execution was a political calculation just as the whole trial that led to his conviction was pure political calculation. Political executions should never be confused with justice.
When it comes to Iraq the Bush Administration has a serious credibility problem. The show trial followed by the grisly executions has compounded the problem for the White House. The fictional story fed to the American people has run into serious problems.
The administration largely succeeded with its fictional trial story in the corporate media. Major newspapers and television shows have repeated the government-approved mantra that there was due process in Iraq, that the “trial” was a major act for a fledgling democracy. Where there was international outcry, the propaganda of the United States was firm. On the day we filed an emergency appeal in the U.S. Court of Appeals for the D.C. Circuit, the Washington Post announced by editorial that while “the trial was imperfect,” the resulting deaths would “still be justice,” adding that there was “something unreal about the cries of foul from human rights groups.”
The fact that there was no apparent competent tribunal or trial that resulted in the conviction and execution of these men was of little concern. The Iraqi Special Tribunal (IST) itself was a creation of the U.S. government, a violation of the Geneva Convention that prohibits an occupying power from altering an existing court system. It is not legal, legally competent or independent and it is financed by the U.S. government. As written in our brief to the Court, “There is nothing juridical about the proceedings to which Al-Bandar has been subjected except the fact that it has taken place in a courtroom. It has been a political proceeding with a pre-determined outcome that has been enforced by the repeated pressure and intervention of the Prime Minister, acting to serve the occupying powers.”
The show trial
Judge Bandar was forced to wear a Guantanamo style prison jumpsuit when he was put to death on Jan. 15. He was convicted of the “crime” of having been the presiding judge over a two-year-long trial against those accused in the assassination attempt on Saddam Hussein at Dujail in 1982, during the Iran-Iraq war. That was his accused crime, being the judge at the trial. Yet, the Court refused to allow Judge Bandar to access or present the record of the underlying trial. He repeatedly pled, “Give me the records of the trial and I’ll prove that it was fair.” He was not allowed to have them, nor was the prosecution required to present them. The U.S. government was acknowledged to possess those records.
At the start of invasion of Iraq in 2003 the Pentagon released it infamous “deck of cards” with the name and picture of
|
Making it clear that the Iraqi Special Tribunal possessed the best knowledge of the form and function of a show trial, the defense was not advised what charges were actually being leveled against their clients until after the prosecution had called witnesses for seven months. They were then given a few minutes to begin their case.
In the midst of the defense trial, after receiving a written note passed to him from American officials outside the courtroom, the Chief Judge suddenly announced that the defense would be barred from calling any more witnesses and that its case was closed. “You’ve presented 26 witnesses. If that is not enough to present your case, then 100 won’t work.” The defense had presented less than 20. The prosecution had called more than 50 witnesses. The court then announced its verdict, sentencing three of the defendants to death on Nov. 4, 2006.
This “independent” and “sovereign” trial took place in the Green Zone, the U.S. government’s garrisoned mini-state carved out of the middle of Baghdad. All participants had to rely on the U.S. government for their security—in other words, to stay alive. As such, three defense lawyers were murdered in the course of the trial, the first killed the night after the first day of trial. Another attorney was taken by men who said they were from the Ministry of the Interior. He was found the next day. He had holes drilled in his head. But this was asserted to be no impediment to a fair trial. Defense witnesses were reportedly tortured and killed. The IST ordered that such allegations not be raised at the proceedings and threatened surviving defense counsel with their own arrests.
The current puppet leadership of Iraq is drawn from the Dawa Party. The Dawa Party was the political force that organized and carried out the 1982 assassination attempt against Saddam Hussein in Dujail. During the trial, the judges were replaced repeatedly by the executive branch if they felt their statements were not sufficiently harsh toward the defendants. Others were told that they would be fired and that they and their families would be “put outside of the Green Zone” if they didn’t take a hard enough line against the defendants. Placement outside the Green Zone under these conditions would amount to a virtual death sentence for the wayward judges. Certainly, the hallmark of a competent tribunal is that it be part of an independent judiciary.
The United States acknowledged that it had the defendants in their exclusive physical custody at Camp Cropper, including Judge Bandar. Only the U.S. military personnel had control over him. The prisoners could not be visited, touched, spoken to or seen—let alone murdered—without the direction and agreement of the United States.
Legal struggle in U.S. court
On Dec. 26, 2006, the appellate panel of the Iraqi Special Tribunal upheld the convictions with a bloodthirsty statement, demanding even that more be killed than these three men.
Working with former U.S. Attorney General Ramsey Clark, we immediately turned to file an emergency Petition for a Writ of Habeas Corpus and a Motion for a Temporary Restraining Order (TRO) by that evening in the U.S. District Court for the District of Columbia, seeking to keep the U.S. from transferring custody of Judge Bandar to his certain death. We had an emergency TRO hearing the next day in which the United States acknowledged that it possessed custody of Judge Bandar.
But the government claimed it could not be bound by the U.S. courts because it did not possess legal custody. The U.S. government was not in control of the military operations in Iraq, according to the representations of government attorneys. Also, they asserted that the U.S. government was loath to interfere in the sovereign affairs of the Iraqi state. U.S. law is accustomed to fictions that allow it to proceed in protecting interests as needed—like the fiction that corporations are the same as people and therefore have constitutional rights.
The judge accepted the U.S. government’s assertions. Citing only two cases, those from World War II victor’s trials, the judge denied the relief we sought. The composition, authority, relationships and function of the Allied Forces in the Pacific Theater of World War II and the forces in Iraq, the circumstances of custody, and the nature of the courts involved were vastly different. That there have been nearly 60 years of intervening legal developments and pertinent case law, and also the binding Geneva Conventions that came into force after those cases, was not of moment.
We then went to file a Motion for a Stay or Injunction Enjoining Transfer of Petitioner Outside U.S. Custody in the U.S. Court of Appeals. The District Court judge gave us until close of business two days later to file with the appellate court, requiring the U.S. government to agree that it would not send Judge Bandar to his death before 5 p.m. on Friday.
How the United States could agree not to send Judge Bandar to his death when it said it did not have the ability to control his being sent to death while he was in U.S. custody was apparently of no legal moment either.
The temporary stay defied the fiction that the U.S. government’s operations in Iraq are not under the control of the U.S. court. But this fiction, like the rest of the Iraq story spun for the people of the United States for the past four years—and the twelve years of genocidal sanctions that proceeded the war—relies on others’ active support. It is a false logic based upon false facts and can only be sustained if the media and the courts and the people accept the fictions at face value.
Extrajudicial murder
At about 6 p.m. on Friday, the appellate court too ordered the United States not to hand Judge Bandar to his death for another hour. Then, after 7 p.m. on Friday, the court announced that Judge Bandar had not met the stringent standards for a stay pending appeal.
These standards include the “prospect of irreparable injury to plaintiff if relief is withheld”—in other words, what harm will be caused if the relief is not granted pending a determination on the merits. The harm caused to Judge Bandar was his life being ended. To most observers, this would seem to be a great harm. It is difficult to imagine a greater harm.
However, the U.S. government asserted a greater harm: were the court to order a temporary stay to keep Judge Bandar from being killed while his rights were sorted out in court, it would undermine Bush’s authority. Further, keeping Judge Bandar from being killed, even temporarily, would undermine the U.S. efforts to provide, “the Iraqi government with critical support at a time when it is fending off attacks both physical and ideological.”
We learned that night that Judge Bandar had been hung when it was morning in Iraq. The “free press” told us so. The next morning, we learned that the press was wrong, having been fed a pre-prepared hanging scenario and description, which was obediently reported as news.
We then filed a request for an en banc review in the appellate court. That was denied with one line. We sought relief from the Supreme Court. That was denied by Chief Justice Roberts. We exercised the right to make a second petition to the Supreme Court, which was referred by Justice Stevens to the Court as a whole and then denied.
Then we waited. Again we read that Judge Bandar was to be killed. But he was not. The delay created a space for protest. The international outcry became louder and louder calling for the execution of Bandar not to take place. The U.N. Secretary General, the Secretariat and U.N. human rights agencies opposed the surrender of the defendants. This is the same U.N. that the U.S. government asserted to the court was the supreme authority over military actions in Iraq, including the transfer of Judge Bandar to death.
Simultaneously, all the protestations from the U.S. government appeared, served up for the U.S. public’s consumption. We learned from the media how distressed the U.S. government was; its hour by hour struggle and wrangling over the hangings; its public relations campaign at distancing themselves from responsibility. All of which acknowledged that the U.S. government fully controlled the condemned men’s custody.
When they hung Judge Bandar they did so suddenly without notice to his family or to his lawyers. He was just taken out and killed. On the morning that we learned he had been killed, we opened the New York Times to read an article that had been fed to the press. It declared again the concerns and protestations of the U.S. government, stating that the government was avoiding handing over the men for death absent assurances. They were already dead when it was being printed, perhaps even written.
The Times created the image of the besieged jailers with the mob calling for hangings and the jailers negotiating to ensure that the stringing up would conform to the best tales of honor in the Old West. Or the Roman Empire.
The truth is that had the international outcry succeeded in stopping these hangings it would have been a significant setback for the United States and would have opened up all the questions over the illegality of the underlying proceedings, the U.S. government’s puppeteering, and, at its core, the overwhelming and ever-present lies about the U.S. occupation of Iraq. This needed to end for the U.S. government as soon as possible. The United States captured them, it gave them a show trial; it hung them.
The end hasn’t come yet, however. The lives of hundreds of thousands of Iraqis have ended because of the U.S. invasion. The lives of over 3,000 soldiers have ended and tens of thousands more devastatingly altered.
With each “milestone” we are told that the end of trouble is here. With the invasion, it was to be over. With the capture of Saddam Hussein, it was to be over. With the trial, it was to be over. With the hangings, it was to be over. But it will not be over until the United States leaves. This is the malignancy that is destroying the lives of the Iraqi people.
History may never know who was behind the executioner’s mask, but we need not lift the balaclava to know who really carried out these executions. If the U.S. government and the Pentagon cannot be stopped by the courts from carrying out extrajudicial murder, what is the supreme authority that will constrain them? There is only one, and it is the very concern that Bush has expressed in his ruminations over the hangings gone wrong. The people of the United States, once they have become convinced that the government is lying to them, can awaken and become the most powerful force in the political equation. This is the government’s greatest fear, and rightly so.
Verheyden-Hilliard is the co-founder of the Partnership for Civil Justice and co-chair of the National Lawyers Guild Mass Defense Committee. For more information on the Habeas and TRO filings and on the IST, go to www.JusticeOnline.org/Bandar.
