Wilson Myers' War
The American Lawyer
Nothing signals the impermanence of the American occupation of Iraq quite so much as the humble trailer. Hauled in by the thousands after the 2003 invasion, trailers serve as living quarters, office space, and even fast-food restaurants at U.S. military bases. In some places, dozens are linked together to make large complexes. So when the lawyers on the Baghdad provincial reconstruction team (111 civilian and military officials charged with helping rebuild Iraq) won a $900,000 grant from the U.S. Department of State to establish a legal defense center for indigent Iraqi prisoners, the housing was preordained. The center opened May 11 in five trailers in a guarded compound in the Rusafa neighborhood of central Baghdad.
The American lawyers who asked for the funding, and who oversee the center, say it represents a new paradigm -- not just for the Iraqis, for whom legal representation is typically reserved for the wealthy or well-connected -- but for a five-year U.S.-led justice reform program that until now has been preoccupied with capturing, holding, and prosecuting suspected insurgents. Wilson Myers, a civilian contract attorney hired by the State Department, and the senior lawyer on the Baghdad provincial reconstruction team, believes that the American approach to "rule of law" -- a term government officials apply to any justice-related project -- should also include the foundational aspect: aid to law schools, lawyers and local criminal and civil courts. "The [defense center] is an example of a shift of focus from kinetic to nonkinetic operations by the rule of law community in Iraq," Myers says. "Detainees' due process is now as important as their detention."
Over the past six months, The American Lawyer interviewed dozens of U.S. lawyers who have worked in Iraq -- as well as Iraqi lawyers -- by phone and in person in Baghdad. They described a justice system in dire need of reform. Most police aren't trained to preserve and collect evidence. Instead, they rely on confessions, which are often obtained through torture. Prisons, including juvenile facilities, are overcrowded and unsanitary. Civil courts are open, but painfully slow, and petitioners have little confidence that rulings will be enforced. An attorney's influence in a court decision usually depends on his relationship with the judge hearing the case.
We found growing support for Myers' agenda, particularly among civilian lawyers who have since returned to the United States. But the power brokers at the U.S. Embassy in Baghdad, who control the purse strings of an estimated $120 million annual justice system budget (excluding police funding) for Iraq, are still wedded to a strategy that is primarily focused on the detention and prosecution of the 21,000 Iraqi prisoners in coalition custody.
Philip Lynch, an assistant U.S. Attorney from Seattle, is the rule of law coordinator for Iraq. Lynch says he understands that if Iraq is to function as a modern state, it needs modern law schools and lawyers. He says that it also needs foreign investment, and to have that investment, it must have a civil court system that works. But security, he insists, must come first. "The top priority of the American military is always going to be criminal prosecutions," Lynch says. He adds, "I agree with that. If you have someone shooting at soldiers, you want to have them prosecuted quickly and efficiently."
Myers is undeterred. Interviewed in his office during a bad stretch of violence in April that prevented his team from leaving the Green Zone -- the fortified section of Baghdad that is the seat of power for the Iraqi government and its American protectors in Iraq -- he was enthusiastic about the reform efforts. "Things are getting better here, they really are," Myers said. "It would impress anyone to see the dedication of people at the courthouses -- the clerks, the judges, the lawyers." A few months later, in July, Myers said his team was running 10 to 15 missions a week -- visiting judges, prisons and police stations -- and that the courthouses were packed with Iraqi civilians. With the security situation in Baghdad improving, he can more credibly argue that reform projects are worth embassy attention and American tax dollars. He recently signed up to stay in Iraq through the summer of 2009. This is a turning point in Iraqi history, he said: "We can't leave now."
The American rule of law bureaucracy in Iraq is a tough ball of yarn to untangle, but broadly speaking, there are three major groups, and about 400 lawyers in all.
First on the scene, and in the pecking order (initially, at least), were military lawyers with the Judge Advocate General's Corps. Their priority then, and now, is detainees: where to keep them, how to prosecute them, and recently, how to move as many as possible to Iraqi custody. There are now about 350 military lawyers in Iraq; Army colonel W. Renn Gade is the top military lawyer in the country.
The second group consists of the policy-setters at the U.S. Embassy in Baghdad. These U.S. Department of Justice and State Department attorneys act as advisers to the Iraqi government, work with the Iraqi High Tribunal (roughly analogous to the U.S. Supreme Court) and plan big projects, like the Central Criminal Court of Iraq, where coalition-held detainees are tried by Iraqi judges. Lynch, the Justice lawyer, is the top rule of law official, reporting to Ryan Crocker, the U.S. ambassador to Iraq. Lynch's counterpart, in Washington, D.C., is John Euler, a career prosecutor who has worked in Iraq. Euler hires Justice lawyers to work in Iraq -- there are currently 19 Justice lawyers in the country, four at the embassy and 15 in the provinces -- and they offer advice on broad policy, detainee and contractor liability issues.
The third group of American lawyers in Iraq work for the provincial reconstruction teams, or PRTs. Myers supervises seven lawyers on the Baghdad team (five Americans, one British and one Iraqi), and also offers advice to another 30 or so lawyers on other PRTs. "We look at it in law firm terms," he says of his job at the Baghdad PRT. "I'm the managing partner."
PRTs are an import from Afghanistan, where American commanders discovered that embedding small teams of civilian and military specialists in the provinces to work with Afghan council, police and judges was an effective way to offer aid. The first Iraq PRTs started working in Mosul, Kirkuk and Hillah in November 2005. There are now seven American-led permanent PRTs in Iraq, along with about 18 ePRTs, or "embedded" PRTs, who travel with military units (the number of ePRTs is expected to decline as surge troops leave Iraq). There are also three coalition-led PRTs.
The number of team members varies depending on the province. The Baghdad group, which is the largest, has 111. Outside of Baghdad, the teams operate out of military bases in their provinces. How often team members are able to travel depends on the location. In Kurdish northern Iraq, they have almost total freedom of movement. In Basra, in the south, team members hardly ever leave their armed camp.
The permanent PRTs in Iraq are State Department-led with support from the U.S. Department of Defense. The legal advisers don't have a separate budget. To pay for special projects, like computers or books, Myers' group applies for a grant from the State Department's Quick Reaction Fund, which caps distributions at $200,000. For bigger projects, like the legal defense center, the team must tap another, bigger pool of money: the Targeted Development Program, money allocated from Ambassador Crocker's office, which funds projects that cost up to $3 million. To date, Myers' team has spent about $2 million on rule of law projects.
All of the permanent PRTs have civilian legal advisers on staff. They come from a range of backgrounds. Thomas Doherty, who was a legal adviser in the Babil province until February, was in private practice before coming to Iraq, and he is now a hearing officer at the Massachusetts state licensing department. A few others are law professors or retired judges. About half are Justice Department prosecutors. Terms of service vary, but civilian contractors like Myers, who are hired by the State Department, typically work one-year contracts. Many of the civilian lawyers on the PRTs have military backgrounds (Myers is a retired Army colonel). They are, overwhelmingly, an older group. Their children are grown, and they are closer to the end of their careers than the beginning. If there is a unifying quality that ties these individuals together, it is a willingness to take on a job that few others want.
Myers, 56, has white hair, blue eyes, a bit of a belly and a scratchy southern accent. He is an unlikely nation builder. By trade, he is a criminal defense attorney most recently from Bay Minette, Ala., near Mobile. In 2002 he was the Libertarian candidate for attorney general of Alabama (an election, needless to say, that he lost handily, receiving 3 percent of the vote). He was opposed, initially, to the Iraq war. Libertarians are small-government isolationists, and it just didn't make sense to him, he says. Nevertheless, when a friend offered him a job with the Coalition Provisional Authority, the American-led government that ruled Iraq for 14 months following the invasion, he accepted. "I wanted to see for myself," he says.
In that first tour of Iraq, which began in 2004, he worked several jobs, including a brief stint as senior legal adviser for the Commission on Public Integrity at the U.S. Embassy in Baghdad. "I was the only defense attorney in a room full of [assistant U.S. Attorneys]," he recalls. "Sort of like a long-tailed cat in a room full of rocking chairs." He met enough Iraqis and heard enough horror stories, to convince him that the United States needed to stay and help. "I've become a believer," he says. "We have given 28 million people the opportunity to have freedom."
After returning home, Myers found his work as a criminal defense lawyer no longer satisfying. He returned to Iraq in the summer of 2006 to join the Baghdad PRT, where he works out of a heavily guarded office in the Green Zone. "This is where the action is," he says of his office. "This is where we do stuff. We go out into the Red Zone probably every day doing something. We visit courthouses, prisons, deal with juvenile issues, meet with the bar association. And we have a network of Iraqi staff [an attorney, a former police officer, and a translator] that work with us and live in the Red Zone."
While this may seem like a rational approach to the challenge of managing justice reform in a war-torn country -- how else are you going to rehabilitate a foreign nation's justice system without getting out in the country and meeting its legal professionals? -- in the short history of the American-led rule of law effort in Iraq, Myers' strategy is downright radical. Until a few years ago, for example, no one at the U.S. Embassy had even talked to the Iraq Bar Association, which represents 40,000 Iraqi lawyers, because it was assumed (falsely) to be a bastion for Baathists.
Myers, though he receives "substantive guidance" from the embassy, has, as a practical matter, free rein to address the priorities that he thinks are most important. How does he determine those priorities? It's pretty simple. He talks to actual Iraqis and asks them what they need.
This, too, is radical.
Procedurally, Iraq's justice system is based on a version of the Napoleonic civil code. Due process, evidence-based adjudication and the right to counsel -- three foundations of Western law -- don't mean much in Iraq. An Iraqi charged with a criminal act will first see an investigative judge, who functions something like a prosecutor, investigator and grand jury rolled into one. If the judge believes there is sufficient evidence to move the case forward, the prisoner will stand trial before a three-judge panel, which will decide his fate. Judges are considered fact-finders, and everyone else involved is expected to aid the judge in a quest for truth.
One American JAG officer recalled having a conversation about the concept of inadmissible evidence with an Iraqi judge. "He was outraged," the officer said. "Evidence is evidence, no matter how it is gathered," the judge declared, pounding on the table.
Enormous philosophical differences are just one of the myriad issues in reforming Iraq's justice system. American lawyers who worked in Baghdad during the first few years of the occupation say they were also hamstrung by a lack of familiarity with Iraq's legal traditions. "Many of the prosecutors who go over there aren't well trained or suited for work overseas," says David Tafuri, a Patton Boggs partner who spent a little more than a year in Iraq as a legal adviser to the State Department. "Being a great prosecutor doesn't make you good at spotting problems with a justice system that is dissimilar to our system and marshaling the resources to fix it."
American leadership has been another concern. Until last year, when a Justice Department lawyer (Lynch) was appointed to oversee the legal reform efforts in Iraq, no one was really sure who was responsible for directing the legal reform effort. The nastiest turf battles were between Justice and the State Department. An October 2005 Office of Inspector General for Iraq Reconstruction audit of rule of law in Iraq -- the most recent U.S. government report to directly address the topic -- describes a combative work environment. "Jockeying between agencies and the field, chiefly [the Justice Department] and [the Bureau of International Narcotics and Law Enforcement Affairs at the State Department], diverts motivated, talented employees from the tasks at hand and arises from genuine policy differences and the replaying of disputes that originate in Washington," the audit says. "At root is [Justice's] perception that it has the requisite judicial expertise and should be able to operate on its own."
The Justice Department's Euler admits that it hasn't been easy. "The setup in Baghdad is unusual. In no other embassy has the ambassador asked the Department of Justice to take responsibility for rule of law, so there are bound to be issues. But on the whole the State Department has worked with us well."
The political infighting, coupled with tremendous political pressure to transform Iraq into a law-abiding democracy overnight, has resulted in millions of dollars of misspent money. One project that stands out as a particularly expensive mess is the Nasiriyah Correctional Facility, originally conceived by the Army Corps of Engineers as a $49 million, 4,400-bed facility in 2004. The prison was planned as a modern facility, complete with water, waste treatment and air conditioning. Assuming -- correctly -- that the prison would have an erratic supply of energy from the national grid, engineers ordered electrical generators. But to power them the Iraqis would have to deliver 8,000 liters of diesel fuel to the out-of-the-way site every week. "When we told [the Iraqis] how much fuel was necessary, they thought we were from Mars," says Frank Ramaizel, a former State Department consultant to Iraq's Ministry of Justice. (A radically scaled down prison, now with just 800 beds at a cost of $15 million, is almost complete. It is more than two years behind schedule.)
Myers, as one of the longest-tenured lawyers in a country where yearly turnover is the rule, bore witness to these mistakes. Though he declined to comment on specific failures, he is clearly suspicious of far-reaching, expensive justice reform projects. This was in evidence on an April morning while leading a reporter for The American Lawyer on a tour of the Central Criminal Court of Iraq. In a hallway outside a courtroom, Myers bumped into an Iraqi court clerk he knew. The clerk told him that he had spent the previous few days shuttling files from the courthouse in Sadr City, a neighborhood then under siege, to a safe location. Listening to the conversation, Larry Winn, a Justice Department legal adviser who had joined the PRT just a day before, was incredulous. A fairly simple electronic filing system, he said, would save time and make such heroic actions unnecessary. Myers nodded, and said yes, that would be nice, but what the Iraqis need right now might be better filing cabinets.
This attitude is evident in how the Baghdad PRT chooses its priorities. Rather than try to impose wholesale changes on Iraqi legal culture, or spend millions of dollars on far-ranging projects that don't meet the Iraqis' needs, the PRT is going down a different path. They're taking a step-by-step approach that addresses the foundational legal issues that Myers believes are important to a lawful society, and that have been previously ignored by the rule of law officials at the U.S. Embassy and the military. "We do little things, but it's the projects that give us credibility with the stakeholders," Myers says. For example, his team recently received a $33,000 grant to provide a set of 629 law books to three law schools in Iraq. The Baghdad PRT helped arrange a curriculum-planning conference for 20 Iraqi law school deans in Erbil. The team has also worked with civil court judges on repatriation issues and with juvenile court judges on addressing the abuse of juveniles held in detention centers.
"We're trying to create an environment where judges will respect lawyers as zealous advocates, and lawyers will be willing to stand up and defend their clients more aggressively," Myers explains. "There's a cultural shift that we're trying to overcome."
When trying to judge the effectiveness of American justice reform in Iraq, it is important to remember the context. It is easy to forget, even when in the country, just how dangerous it can be. Travel outside of the Green Zone is either by military helicopter or in an armored vehicle. Security briefings before outings address such issues as where to find the first aid kit and extra tourniquets. Two American Lawyer interviews, one in the Green Zone, and one at the Rusafa compound, were interrupted by the kettle drumming of nearby explosions (the former was a rocket attack, the latter a car bomb). In June a State Department civilian employee on the Baghdad PRT was killed by a suicide bomber at a Sadr City council meeting.
But the danger the Americans face is nothing compared with that confronting Iraqi legal professionals. Nearly 50 judges have been assassinated in the past five years, along with an unaccounted number of lawyers. House bombings, kidnappings and assassination attempts are distressingly common. One lawyer, who was supposed to come to Washington, D.C., last November as part of a delegation, was murdered. Hatef al-Araji, the treasurer of the Iraqi Bar Association, lost his son last year. The young man, a lecturer at Baghdad University, was killed by unknown assailants. "We have a strong belief in God," said Aswad al-Minshidi, the president of the Iraq Bar Association, when asked how he copes with the violence. Al-Araji simply says: "This is our life."
Lawyers in Iraq complain that they don't get the same protection as judges, but the reality is that there are simply too many of them to protect. At best, the Americans can provide a safe place to work for a select handful, which is one of the attractions of the Rusafa legal defense office that Myers' crew set up in May.
The office is in a guarded compound near the center of the city, which also includes a detention center, the Baghdad Police College, and a branch of the Central Criminal Court of Iraq. It is the Baghdad PRT's most ambitious and expensive project to date.
In its first two months of operation, Iraqi lawyers at the center had seen 500 of the 7,000 detainees imprisoned nearby. Patricia Wildermuth, the PRT lawyer who oversees the project, says the lawyers are paid $500-$1,000 a week, plus incentives, through a grant to the Iraq Bar Association, and that they must maintain a minimum caseload.
Rusafa is the best example of cooperation between the law-and-order military lawyers and the legal reform people like Myers. The American lawyers at Rusafa operate under the banner of the Law and Order Task Force, providing technical, bureaucratic and logistical support to the Iraqis.
It is an Iraq-run operation, and the Americans try to keep a low profile. "Every investigation has an American and an Iraqi working on it," says William Gallo, a Justice Department attorney who is the director of the task force. "We try to teach how to conduct fair and transparent investigations. We give opinions, not orders." (The task force has forbidden anyone in uniform from entering the courthouse.)
How long will it take before the Iraqi justice system operates at a level that the Western world deems acceptable? Justice's Gallo doesn't offer a timetable. "As Americans we tend to be impatient," he says. " 'Why can't you see the merit of doing it the right way?' we wonder. We shouldn't condone complacency, but we also have to look at what we're doing here in the context of history. Iraq won't change overnight. This is evolution, not revolution."
Myers says that the Iraqi lawyers he meets "have a thirst for knowledge," but that "it is going to take a generation to make up for 35 years of legal neglect in Iraq," he says. "You have to start with law schools and graduate a crop of young lawyers. It is going to take the bar association [offering continuing legal eduction]. It's going to take the government to start enforcing regulations based on the law. There are a lot of moving pieces."
Myers says he hopes that the defense center will evolve into a mainstay of Iraqi legal society. PRTs elsewhere in Iraq are studying the Rusafa model to see if it can be replicated. But just like many of the other reform measures in Iraq, its future isn't secure. Funding for the Rusafa center runs out after one year. "After that, we will see what the Iraqis really want," says Wildermuth, the PRT lawyer who oversees the center. If the Iraqi government chooses, it can continue to pay the salaries of the 25 Iraqi lawyers who work there.
Or, the Americans can load the trailers back on the trucks and haul them off for some other purpose.
Listen to a podcast of Ben Hallman's experiences reporting from Iraq.