No Comment — December 23, 2007, 9:30 am

An Update on the Trial of Bilal Hussein

America’s first major trial concerning press freedom involved a German newspaper man, John Peter Zenger. He was accused of having libeled the Royal Governor of New York, William Cosby. Andrew Hamilton won a favorable jury verdict in that case that set the tone for American attitudes about a free press three decades before the American Revolution.

Iraq’s equivalent of the Zenger case is being conducted now before an Iraqi investigating judge. In the dock sits the Pulitzer Prize-winning Associated Press photojournalist Bilal Hussein. The prosecution is brought by the American Pentagon, under a Secretary of Defense who states–rather unconvincingly–that “the press is not the enemy.” I have just been given an update on the handling of the Bilal Hussein case from a Pentagon source who claimed to have been briefed on the proceedings.

Bilal’s case has been assigned to investigating Judge Dhia al-Kinani, who has already conducted a long series of evidentiary hearings in the case. The source said the Pentagon is confident that they will secure a conviction in the case. “Nothing is being left to chance in this case. It’s important and a lot of resources are being thrown at it.” The Pentagon isn’t concerned about evidence or legal arguments. I wonder why. Some other points.

• Under strong pressure from the U.S. military, the investigating judge closed the case and imposed a gag order. This was requested principally because the U.S. military was concerned about unfavorable media coverage. The Pentagon media strategy involves leaking information as it finds convenient to “friendly new media” (this I take to be wingnut bloggers), but restricting the flow of information to traditional media. The Iraqi judge is fully cooperating with his gag order.

• The U.S. military has assigned a team of five to act effectively as prosecutors in the case. The team is headed by a JAG Captain named Kelvey (or perhaps Calvey). (Says the source: “We recognize, of course, that the U.S. has no authority to prosecute a case in an Iraqi court. That’s one of the reasons that a gag order was essential.”)

• The Iraqi judge is also allowing the U.S. military to present evidence by witnesses through remote television hook-ups from undisclosed locations. This is done particularly to be sure that Bilal Hussein would not be able to cross-examine any witnesses.

• The Pentagon was particularly concerned about the prospect of Bilal Hussein getting effective defense from his lawyer, former federal prosecutor Paul Gardephe. The judge was told to refuse to allow Bilal Hussein’s U.S. lawyer to participate in the case. The judge accepted this advice. Consequently, the U.S. military has a five-man team to press its case, but Bilal Hussein’s lawyer is silenced and not permitted to participate–and all of this has occurred as a result of U.S. Government intervention with the court. The irony of course is that under Iraqi law, the U.S. military has no authority or right to appear and prosecute, but Bilal Hussein’s chosen counsel has an absolute right.

• The U.S. military continues to keep Hussein in their custody and will not allow his lawyer, Gardephe, access to him to conduct interviews or trial preparation without having both a U.S. military representative and an interpreter in the room at all times. Under international norms, this means that Bilal Hussein is not permitted access to counsel: a serious violation of his trial rights. And note that the violator is not the Iraqi authorities, who have no control over Bilal, but the United States Government.

• The Pentagon is convinced that regardless of the evidence presented and the arguments made, Bilal Hussein will be convicted based on its influence wielding and pressure tactics. “The judge announced on the opening day that he would recommend conviction and refer the matter to the Central Criminal Court of Iraq. This was before any evidence or arguments had been produced. Our folks were elated, but concerned that his somewhat rash statement would undermine the credibility of the proceedings. They had expected him to say this only at the end of the proceedings.”

I have a lot of sympathy for the Iraqi judge in this case. It’s difficult for someone in the United States to imagine the sort of pressure that one of these Iraqi investigating judges operates under. In the spring of last year, I interviewed several of them. A number of judges and lawyers who practice in the Baghdad Central Criminal Court have been assassinated, and concerns for personal security understandably run very high. One judge described to me how an American Army major had intimidated and cajoled him about a case, pressuring him into a false decision. “I felt very bad about it,” he said. “But on the other hand, her unit was responsible for my security. What could I do?”

Still this sort of conduct is the exception. Most of the Americans providing support to the court and its judges perform their functions in a capable and professional way, and most of the judges went out of their way to recount their experiences showing professionalism and kindness. The exceptions seem to come when there is heavy pressure out of Washington for a particular result. Like in the case of Bilal Hussein.

Maybe you thought that the United States was in Iraq to introduce democracy and the rule of law. Sometimes it does work very hard to that end. Then there are the cases like the secret prosecution of Bilal Hussein, where the behavior patterns of a petty dictatorship come creeping out. Unfortunately, these are the kinds of incidents which are likely to be remembered when American soldiers have left Iraq.

The case of Bilal Hussein is sending a distinct message to the government in Baghdad and to the dwindling number of American allies in the region. Persecuting journalists is fine with us, it says. And best to do it in the dark, so that no one sees.

Update
A blogger at moonofalabama speculates that the Captain Kelvey of my note is Captain Kevin Calvey, a movement conservative, Club for Growth-backed former Republican legislator from Oklahoma, now serving as a JAG in Baghdad. I did not have the spelling, and my rendering of the name was strictly phonetic. While I have no further information on the anti-free press crusading JAG captain beyond what’s noted above, I will post again when I learn more. The former legislator Calvey’s blog does in any event make for a very interesting read. He’s very, very deep into G.O.P. politics and is acutely concerned about the terrorists and their influence on the Democratic majorities in Congress. No doubt he’d make a perfect pick to handle a case like the one against Bilal Hussein. Why, if Harry Reid and Nancy Pelosi are being manipulated by the terrorists, it must be child’s play for them to take over the entire Associated Press bureau in Baghdad.

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