JUDGE TO ORDER FEDS TO MAKE IRAQ WAR DOCUMENTS PUBLIC

Press Release – For immediate release


JUDGE TO ORDER FEDS TO MAKE IRAQ WAR DOCUMENTS PUBLIC

Federal Jurist Rejects Government’s ‘Trust Us’ Approach, Indicating That She Will Order Release of Documents on Fallujah Assault and Shooting on Car Carrying Italian Journalist

SAN FRANCISCO, April 28, 2008 – A federal judge today said she plans to order the government to release documents pertaining to the war in Iraq that the U.S. military has been fighting for more than three years to keep under wraps.

In a hearing, Judge Marilyn Hall Patel rejected the government’s attempts to continue withholding documents that could shed light on whether the U.S. military acted lawfully during the 2004 assaults on the Iraqi city of Fallujah and the 2005 shooting attack on a car carrying Italian journalist Giuliana Sgrena to the Baghdad airport. The judge indicated that she plans to require military officials to make further disclosures in addition to those she ordered them to make in October 2007.

Today’s hearing was the second in a lawsuit filed under the Freedom of Information Act by the National Lawyers Guild’s Military Law Task Force, which publishes an electronic newsletter, called On Watch, for attorneys and others who provide legal assistance to U.S. service members. The lawsuit is now in its third year.

Judge Patel, speaking from the bench, indicated that she not only will order disclosure of certain documents that until now have been withheld, but she also will examine secret military documents in her chambers to determine which information in these documents the military legally may continue to withhold and which by law must be released.

BACKGROUND:

After four mercenary Blackwater military contractors were killed in Fallujah, the U.S. Armed Forces, in an apparent act of retaliation and collective punishment laid siege to the industrial Iraqi city in April 2004, resulting in the deaths of at least several thousand civilians, if not tens of thousands, and the displacement of approximately a quarter of the city’s 400,000 residents. During the siege there were numerous reports of residents being shot and killed by U.S. snipers upon exiting their homes absent any justification or basis as well as reports of the use of white phosphorous, and massive aerial bombings, some of which included the use of the illegal cluster bombs where shrapnel is discharged, slicing through houses and buildings killing the inhabitants while leaving the structures standing.

After the siege of Fallujah, when human rights organizations began to allege that war crimes had been committed, the U.S. military responded that the force that was used was sanctioned by the Rules of Engagement (“ROE”). Under the laws of war, as set forth in the Fourth Geneva Convention, which is incorporated into U.S. law through the Constitution and is therefore U.S. law, the United States must promulgate Rules of Engagement (“ROE”) in order to set forth guidelines and place limitations on the use of force in order to ensure its lawful use.[1] In an attempt to understand how the siege and resulting massive civilian death toll and large-scale displacement could possibly be justified, the National Lawyers Guild’s Military Law Task Force (“MLTF”), under the Freedom of Information Act (“FOIA”), requested the Rules of Engagement that were in effect during the April 2004 siege on Fallujah.

After the siege, the U.S. military, in an apparent assassination attempt of a journalist, attacked the only unembedded western journalist covering the destruction to the city, by firing upon her car wounding her and killing an Italian government agent whose last act was to throw his body over her, saving her. The MLTF also requested the ROE in effect at the time, given the apparent assassination attempt on this journalist, Giuliana Sgrena, and reports that the checkpoint where the attack occurred had undergone a recent soldier and roadblock change immediately prior to the shooting.

On April 28, 2008, Judge Patel held the second hearing in this litigation regarding the release of the requested documents. Prior to the first FOIA hearing, the DOD and CENTCOM had not released a single document to the MLTF. At that first hearing United States District Court Judge Patel ordered the government to release some of the improperly withheld documents to the plaintiffs, totaling several hundred pages – and for the government to provide the Court with all of the documents at issue, unredacted, for private inspection in her chambers (known in legal circles as in camera review).

After releasing some of the requested documents to the plaintiffs, the defendants DOD and USCENTCOM renewed their motion for summary judgment, arguing that they have now released all the information they possibly could and requested the Court to end the case.

Judge Said Government Went ‘Too Far’ in Withholding Documents
At the second hearing on Monday, April 28, 2008, Judge Patel indicated that she was ready to order the DOD and USCENTCOM to release more documents to the MLTF. Judge Patel informed the parties that she had been reviewing the documents the government had provided and would conclude her in camera review by the end of this week.

Judge Patel began the hearing by asking the Assistant United States Attorney how some documents could be labeled “Unclassified/For Official Use Only,” because if they were unclassified, they should be available to the public and therefore not “For Official Use Only.” The government lawyer could not explain the seemingly contradictory label and conceded that those documents must be unclassified. The Court will order the release of all of these documents.

So far, the MLTF has only received scant ROE information. The general guidelines of escalation of force have been released. They set forth the escalation of force as “Shout, Show, Shove, Shoot.” The MLTF still has not received the context or scenario of that escalation. For example, it is not clear if a U.S. soldier asks an Iraqi civilian to sit down on the curb and that civilian does not comply after a shout and shove, whether the ROE, absent any other reason, authorize the soldier to kill.

Although the Court did indicate that some of the withheld material under the heading “Targets” and “Weapons” could “possibly disclose information to others” that the U.S. military would not want to assist, the judge did indicate that other documents regarding the use of force, including the use of lethal force could be released. Even for documents that contain parts of information that cannot be disclosed, the Court said that to withhold the whole document would be “going too far.” This is because the FOIA requires government agencies to segregate information that is releasable from documents that contain protected information and disclose it to the requester. Judge Patel went on to state that the Court was prepared to order release of documents to the plaintiffs that were are currently being withheld.

‘Trust Us’ Doctrine Rejected

Throughout the hearing the Court refused to adopt what she has characterized as the government’s “trust us” doctrine, and was willing to scrutinize the remaining documents and the government’s reasons for withholding them the remaining documents. The Court was also unwilling to follow the government’s suggestion that the MLTF now had enough information to write the article it was interested in writing or that the government had not waived exemption to information released by the military’s press release office simply because it had not been authorized by a FOIA officer. These arguments were specious given that neither went to the legal standard regarding the release of documents.

The Court indicated that it would issue an order naming what disclosures it would order the government to make, be made and then give the government an opportunity to respond to her order, prior to ordering the release of those documents. The MLTF is now waiting to receive the Judge’s order and the government’s response but it is unclear what information will eventually be released and whether it will come close to explaining how any justification for the massive civilian casualties, indiscriminate killing by snipers and aerial bombings in Fallujah and the shooting attack on the car carrying journalist Sgrena can be justified.

The case is Hiken v. Dept of Defense, 06-CV-2812, N.D. Cal.

[1] This short article does not address whether because of the illegal nature of the war any use of force even if in self-defense is rendered unlawful.