In the United States, a cop who pulls you over calls up your record and finds out where and when you were last stopped, and what the charge was. The Chicago police carry a device that takes fingerprints and transmits them over the radio, with the results of a database search received in minutes.
In Iraq, the police have no detective equipment; no reliable identification system has been widely fielded. As a result, American soldiers on patrol futilely call in the phonetic spelling of Iraqi names on whatever ID card they are handed. (Between 1966 and 1968, by contrast, the South Vietnamese government implemented a labor-intensive census program to register every military-age male in every hamlet.) A few enterprising American rifle companies have conducted their own independent censuses, employing rudimentary spreadsheets and personal digital cameras. But no central information system exists.
This is the greatest technical failure of the war. For all of our efforts, we have ignored one of the most fundamental axioms of counterinsurgency warfare: an insurgency cannot be defeated if the enemy cannot be identified.
Nor can it be defeated if those enemies who are successfully identified cannot be effectively imprisoned. Last May in south Baghdad, an American battalion proudly showed me photos of six Shiites captured with blood on their hands, weapons and shell casings in their car, and a dead Sunni a few blocks away. In September, a judge released all six.
Iraqi police do not make arrests that stick. More than 80 percent of the Sunni insurgents and Shia militiamen detained by American and Iraqi forces are set free. In Fallujah, Major Vaughn Ward’s men detained 120 suspects between March and September. Twenty-four were sent to prison. The rest walked free because judges deemed the evidence against them insufficient. (Prime Minister Maliki compounded matters when, in an effort to pave the way toward political negotiations over the summer, he released thousands of prisoners from jails in Baghdad.)
Some senior American officers told me that the rearrest rate of released prisoners was only 6 percent, compared with a recidivism rate of 65 percent in the United States. So either the Iraqi insurgents were ten times as likely as American ex-convicts to see the error of their ways, or they found it all too easy to evade justice.
American troops mockingly refer to arrests of insurgents as “catch and release.” Some Iraqi police are similarly frustrated. Colonel Sheban is a tough police chief in the restive town of Baghdadi on the upper Euphrates. He lost one brother to the insurgents a month before I met him, and a second brother a few days after I left. His message to me was simple: “I got Jamil Daham. He killed an American. Insurgents go to jail for six, seven months and start again. I want American people to know they should stay in jail. I can recognize bad guys.”
Acting on instinct, Sheban had indeed arrested an insurgent who later was linked to the killing of an American. Of course, to authorize an arrest based on instinct or suspicion is to invite abuse. Yet to insist upon strict evidentiary rules in the midst of a civil war and under a government racked with corruption is to guarantee failure. “Too many Iraqi judges let the terrorists go free,” General Casey told me. Major General M. Roger Peterson, the American in charge of police training, agreed. “We’re not imprisoning the way the situation demands,” he said.
Meticulous review procedures introduced after Abu Ghraib have proved favorable to the insurgents. Any Iraqi detained is brought to an American lawyer at the battalion level; two American soldiers have to fill out sworn arrest affidavits; physical evidence is bagged, and pictures of the “crime” scene are taken. The battalion then has eighteen hours to decide whether the evidence is sufficient to send the detainee to the brigade level. The brigade can hold the detainee for up to eighteen days, at which point it must release him or send him on to a detention facility where a committee reviews the evidence for the third time. If all of these hurdles are passed, the detainee is kept in jail until an Iraqi judge hears the case (giving it a fourth review).
The U.S. Constitution provides for the suspension of habeas corpus in the event of rebellion. During the Civil War, President Lincoln decreed that the police and the Army did not have to show a judge evidence on which they had imprisoned someone. In subsequent wars, prisoners of war and captured guerrillas alike have been held until the cessation of hostilities.
In Iraq, the Americans’ insistence upon strict rules of evidence in the midst of a shooting war has given significant advantages to the insurgents. By posing as civilians, they make themselves hard to identify among the populace. If captured, they are guaranteed civil rights that make detaining them all but impossible, whereas enemy soldiers in uniform would simply be held until hostilities ceased. In Baghdad, every 100 police make eight arrests a year that result in prison time. In New York City, every 100 police make 120 such arrests. If seventy civilians were being murdered each day in Manhattan, New Yorkers would be unlikely to call for stricter rules of evidence than those currently in place.