(This article originally appeared on the Huffington Post)
With only a handful Christmas shopping days left, we can tell that the US military involvement in Iraq is coming to an end. Talk in the media, in the White House and in the barracks has turned to legacy. Liz Sly of the Washington Post has a sad, important story about the legacy of the US invasion and occupation of Iraq.
The story highlights, if that word is even permissible here, some of the long series of atrocities committed by the US in Iraq, instances where our killing of civilians, whether by accident or as purposeful vengeance or something smeared in-between, ruined any chance that the US could in fact capture those hearts and minds and build a stable society in our image. We could hold ground with tanks but only achieve our broader national security goals via reconstruction.
While focusing on the massacre at Haditha, Sly also references the killings at Nisoor Square by Blackwater under the “control” of the State Department and several other examples. In a sad coda to the war, even online she did not have space to touch upon all of the incidents, so ones like the aerial gunning down of civilians captured so brilliantly in the film Incident in New Baghdad, or the rape-murder of a child and her family from the book Black Hearts are missing.
There are just too many dead.
The Black Hearts killings are especially significant to me. I read that book while in Iraq, learning that in 2005 American soldiers raped and killed a 14 year old child, murdering her family and setting fire to her home to hide the evidence. About a third of the way into the book I realized that the incident took place only a mile or two from where I sat, that it took place in the area where my Provincial Reconstruction Team (PRT) worked, that we regularly visited the town nearest the kill site. Yet none of us knew this. I asked my State Department colleagues, as well as the soldiers we were embedded with, and while some had heard of the atrocity, all were surprised to learn it took place on ground we regularly traveled. It was never included in any of our preparatory briefings for Iraq service. Our bosses wanted us ignorant, or, more likely, were ignorant themselves. The chain of responsibility, even for knowing, ran higher up than us.
You can damn well bet that the Iraqis we met remembered, even if we did not.
It was that realization that informed my comments to Sly, quoted in her Washington Post article:
We tried to convince them we were the good guys and that we’d got rid of Saddam, but given all the killings that had happened, that never hung together… It’s in the air, it’s in the water, it’s the background music to what we do. The Iraqis remember it even if we don’t. It will be a very dark legacy, and it’s one that will follow us around the Middle East.
Sly’s article also quotes retired Army Colonel Pete Mansoor, who commanded a combat brigade in Baghdad in 2003-04 and then returned as executive officer to David Petraeus during the Surge, explaining the fog of war, the ambiguity of decision making in a chaotic urban counter-insurgency struggle, and exonerating those who made wrong, fatal decisions by saying “when you look at it from the soldiers’ point of view, it was justified. It’s very hard.”
Though I doubt he would find many Iraqis who would agree with him, and though I do doubt Mansoor would accept a similar statement by an Iraqi (“Sorry we killed your soldiers, it was hard to tell the good ones from the bad ones”), I sort of agree. Sort of.
Iraq Worked Like This
I spent a sweaty cold night at a checkpoint on the outskirts of Baghdad hanging around with soldiers who spent more than too many nights out there. Soldiers who would joke about anything became really quiet on a checkpoint because they knew they would be making kill-or-be-killed decisions many times that night.
Within the limits of available electricity, they would try to light up the spot as best they could so drivers could see them. Iraq at night was a dark and dangerous place, and drivers were not going to stop without a good reason. The next step was to somehow communicate to drivers that they had to stop. You could start with big signs in Arabic and English that told folks to slow down, but there was that light problem again, plus many Iraqis were illiterate. You could set up all manner of flashers and twirling things— a good start but ambiguous. Drivers might think it was a wedding party (plenty of guns there as well). Car bombs were a big thing to be scared of at a checkpoint. Usually the explosives were intended for some other target and were just passing through your ’point. But if the driver thought you were on to him, he’d blow up the car bomb right there and never mind the real target. Checkpoints made everyone nervous, and nervous people and guns were a bad mix.
As cars approached, soldiers would be thinking about the ROE, rules of engagement, which stipulate when you are allowed to kill someone. Even wars have rules, and nobody went outside the wire without knowing exactly what they were. At a checkpoint they typically went like this: Try to stop the car with lights, sound, and hand gestures. If it keeps coming, try shining a laser or bright light at the driver (called “beaming”). If that does not work, fire a warning shot or a nonlethal round. Still coming? Fire into the engine block to disable the car. Not enough? Kill the driver.
In theory, this all seemed logical enough. In reality, it didn’t work as well. The soldier might have been up the last eighteen hours on patrol and is staying awake only with the constant application of Rip It energy drinks and instant coffee crystals crunched between bites of candy. Last night one of his buddies was almost killed by a driver who got scared and hit the gas. He is on the move and sweating despite the cool weather because standing still anywhere, never mind under bright lights, can attract snipers and he does not want to get popped. The vehicle approaching has only one headlight and it looks like there are several people in the front seat, where there are usually only one or two. In the span of three seconds he needs to try to wave down the driver, beam him with the laser if the guy doesn’t slow down, fire a nonlethal round if he keeps going, and then switch weapons and be ready to take a life. He’s Zeus, Thor throwing lightning bolts. Make the decision. Shoot or don’t shoot. Decide.
He doesn’t shoot this time. The vehicle with one headlight slowed down of its own accord late in the cycle. Maybe the driver couldn’t find the brake, maybe the brake didn’t work, maybe he was rehearsing for a suicide run later that week, who knows, he slowed and stopped. Front seat full of kids, driver dad, mom in the backseat with a baby. They stopped, the search came up empty, the IDs didn’t have any of the unpronounceable Iraqi names on the bad-guy list. They pulled out, likely with no idea the soldier had just weighed their lives against his. He chugged another hit of energy drink and waited for the next car.
Who is Responsible?
The issue of legacy is not so much how/when/should we assign blame and punishment to an individual soldier, but to raise the stakes and ask: why have we not assigned blame and demanded punishment for the leaders who put those 19 year old soldiers into the impossible situations they faced? Before we throw away the life of a kid who shot when he should not have done so, why don’t we demand justice for Bush, Cheney, Rumsfeld, Rice and the others for creating a war that created such fertile ground for atrocity? The chain of responsibility for the legacy left behind in Iraq ran higher up than us.
In this rare moment of American reflection about Iraq that the military pull-out offers us, ask the bigger question, demand the bigger answer. Those Iraqis– and those Americans– killed and died because they were put there to do so by the decisions of our leaders. Hold them accountable for their actions, hold them accountable for America’s legacy in Iraq.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Despite some creative speech making as Obama tries to take credit for “agreeing” to withdraw the last of America’s occupying army from Iraq by the end of the year, Iraq’s own version tells the true story: US troops are leaving Iraq after more than eight years of war because Baghdad rejected American demands that the soldiers have immunity. Comments by Prime Minister Maliki make clear that it was Iraq who refused to let the military remain under American terms.
Why Iraq Said No
Why the Iraqis might not want to grant full immunity to every American soldier in Iraq come January 1, 2012 (they all do have immunity now, under the Bush-negotiated SOFA in place until midnight 12/31/2011) is not hard to guess, likely something to do with almost nine years of war and occupation, almost nine years of accidents and “collateral damage” and mistaken identities and all the sad rest. One incident singled out was detailed by the release of a diplomatic cable that alleged Iraqi civilians, including children, were killed in a 2006 raid by American troops rather than in an airstrike as the US military initially reported. There is clearly far too much blood on American hands for Iraq to simply forgive and forget, what State Department spokesman Mark Toner described after the troop withdrawal announcement as the start of “a new chapter in our relationship” with Iraq.
But despite the long legacy of bloodshed which became frightenly common place for many Iraqis, the refusal of immunity is more likely tied to one horrible, bad day in Nisor Square, where in 2007 Blackwater mercenaries hired by the State Department gunned down 14 Iraqis (some say it was 17) and wounded 20 more. Such killings occurred almost daily in Iraq, but what made this one tragically memorable is that despite almost over-whelming evidence that the victims were innocent, technicalities in US law were used to prevent the shooters from being prosecuted. They walk free today. The system the US wanted for its troops in 2012 did not work when tested. The process America promises in 2012 will protect Iraqis them failed them completely in 2007.
To begin, the American Embassy in Baghdad in 2007 produced a “spot report” claiming that Blackwater had come under fire from an “estimated 8-10 persons” who “fired from multiple nearby locations, with some aggressors dressed in civilian apparel and others in Iraqi Police uniforms. The team returned defensive fire.” The report was on State Department Diplomatic Security letterhead, but was actually written by a Blackwater employee.
However, the US Army’s First Cavalry Division arrived at the Square moments after the shooting. They found no shell casings from AK-47s (the kind used by insurgents or the Iraqi police). The Cav concluded “It was obviously excessive. It was obviously wrong. The civilians that were fired upon, they didn’t have any weapons to fire back. And none of the Iraqi police or any of the local security forces fired back at them.” A later Iraqi government inquiry also concluded that Blackwater opened fire without provocation.
The Iraqi government revoked Blackwater’s license to operate in Iraq the day after the massacre. Blackwater, however, kept operating in Iraq without a license, under State Department contract, until 2009, two years later. Through its many name changes and corporate reshuffling, remnants of Blackwater continue to carry weapons in Iraq today.
Immediately following the shooting, State Department officials for reasons never explained offered limited immunity from US Federal prosecution to the Blackwater mercs involved to compel them to make statements. At the time, State disagreed with other law enforcement officials that such actions might jeopardize prosecutions. That proved to be the money shot: the US government obtained indictments against the contractors involved in the shooting. The case was then punted in court because it was not clear whether the indictments were based on immunized statements or other evidence. The DC Circuit court remanded the case, directing the government to show that it obtained sufficient evidence implicating the contractors prior to obtaining the immunized statements. Basically, since the State Department compelled the Blackwater guys to answer questions, the courts ultimately found they were denied their Fifth Amendment rights. Game over.
Immunity and the American Empire
Do soldiers garrisoning the American Empire in places like Germany, Korea and Japan have some form of immunity now? Yep, pretty much they do. Here’s how it works.
Virtually without exception, American military forces assigned abroad (at least those in place overtly) are covered under a country-specific Status of Forces Agreement, a SOFA. Each SOFA is negotiated between the US and the “host” country, and covers things from as mundane as the need for driving licenses and who pays local taxes to immunity from national laws. An American soldier covered by a SOFA typically cannot be held accountable under local law, or, if accountable, only under specified conditions and circumstances that typically offer the soldier US-level rights protections. In many cases, s/he may be punished by the US military for a crime, but not necessarily by the local government. The SOFA rules vary considerably from place to place, and can be as complex as any legal code. Most SOFAs are public documents available on the web, though some have a classified addendum.
A SOFA agreement is not unique to the US military, though our overseas presence makes us the biggest user. Most NATO forces, as well as folks like Australian military abroad, exist under some sort of SOFA agreement. Though it can be misused and is often seen as unfair by host country people who are victims of soldier crimes and accidents, SOFA in its most benign form is not much more than a written agreement for the conditions under which a foreign military exists in another, sovereign, nation.
The theory behind all these rules is that the US does not want to grant the host country the ability to arrest and prosecute its soldiers, especially for anything remotely in the line of duty. Accidents do happen, but the SOFA is supposed to prevent politically-charged arrests when say the host country party in power needs to look tough around election season.
Full immunity, what the US wanted in Iraq, is at the extreme end of the SOFA scale: anything an American soldier would do in Iraq has a get-out-of-jail free card attached to it, whether it is a truly accidental weapon discharge or a violent rape of a young girl. The latter, on Okinawa in 1995, when three US service members gang raped a 12 year old, remains an impediment to changes in the US-Japan SOFA even today, over fifteen years later, and even though the men were ultimately convicted in a local court and served sentences in a Japanese prison. A current alleged rape of a young woman by a soldier in Korea serves to highlight how contentious a SOFA agreement can be, even among friends. “I understand the US wants to protect its soldiers from kangaroo courts overseas, but Koreans also have a right to safeguard their own citizens,” said one Korean activist. “The perception among many here is that US soldiers commit crimes and then run back to the protection of their base.”
Back in Iraq
From the Iraqi point of view, the outcome of the Nisor Square Blackwater killings was pure evil. US mercs murdered Iraqi civilians, and then the State Department and US Courts together let them go unpunished. Nobody in Iraq, given the horrors perpetrated on them by the US, was ready to hear talk about “rights.” The State Department thought they saved their own butts with a short-term solution of not taking responsibility for what their own guards did, but in the end likely contributed in large part to the deal breaker that will midwife the full withdrawal of US troops from Iraq this New Year’s Eve.
Meanwhile, the Army pull-out means that the State Department will need to hire 5000 mercenaries to protect itself in Iraq. Those mercs will be protected under existing international standards for diplomatic immunity, meaning they will be completely free from any prosecution under Iraqi law and unaffected by the existence or absence of any SOFA.
There it is, full circle. This damn war has just too much irony in it.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
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