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September 15, 2009
Prosecuting high-threat detainees

Florida lawyer manages criminal investigations in nine Iraqi provinces

By Air Force Capt. Miguel R. Acosta
Special to the News

Capt. Acosta As I stepped off the plane at the Air Force base in western Baghdad in April, my excitement was high despite jet lag and lack of sleep. Having been born and raised in Tampa, I’d survived many steamy Florida afternoons, which unknowingly prepared me for the hot air that hit my face that morning.

I was sworn in to The Florida Bar in September 2007 and officially began practicing law for the Air Force in May 2008. Now in my fourth month of a six-month deployment to Iraq, my official title is Joint Task Force 134, Office of Criminal Investigations, Multi-National Division South liaison attorney (try fitting that on one line of a business card).

For simplicity, let’s just call my office OCI. Militarily speaking, Iraq is broken up into four divisions: north, west, south, and Baghdad. The goal of OCI is to successfully facilitate the prosecution of the high-threat detainees in Iraqi criminal court. The southern division consists of nine of Iraq’s 18 provinces. My job, as the liaison attorney to the south, is to manage the criminal investigations of the high threat detainees in those nine southern provinces.

For whatever reason, OCI has never had an attorney embedded with the unit in charge of the south. What that means is that the lucky (or unlucky) OCI attorney eventually assigned to the south would walk into completely uncharted waters.

When I arrived in Iraq, there were no ongoing high-threat detainee investigations taking place down south, and in fact, no one at my office in Baghdad even seemed to know the name of the base where the southern division headquarters was located. Despite all these unknown factors, when the opportunity arose, I quickly raised my hand and volunteered for the job, in the spirit of adventure.

We soon learned that Multi-National Division-South headquarters is located at Contingency Operating Base Basra in Basra province. It is about 300 miles southeast of Baghdad not far from the borders of Iran and Kuwait. It was formerly a British base, but now Minnesota’s Army National Guard unit, the 34th Infantry Division, is in charge.

In the south, the investigations are conducted exclusively by civilian law enforcement professionals, with 15 to 30 years of either state or federal law enforcement experience, hired by the Department of Defense through a private company.

As you might expect, my job can be quite challenging. The investigators are spread throughout several hundred square miles. Also, there are lots of people involved in the process who rely on my guidance and knowledge of the Iraqi legal system, some of whom I may never meet face-to-face because of the distance.

One of my favorite parts of the job has been the travel. Flying from province to province in a Blackhawk helicopter during the daytime has easily been the coolest part of the job. Sometimes I think that by the time I’m done in Iraq, I will have wrapped up so many frequent flyer miles that I’ll have earned myself a free one-way ticket to Afghanistan.

Despite the distance, I am actually trying to meet each investigator personally. There is something to be said for establishing personal relationships with the people you are working with, even if you have to go to great lengths just to meet the players face-to-face and not just depend on e-mail. This has been the most significant leadership point that I have learned during my deployment to date, and the nice thing is that it translates well to any supervisory role.

Furthermore, if getting to know your people means hopping in a Blackhawk and flying from base to base pretending you’re a commando JAG, then by all means, take that opportunity.

From my bird’s-eye view in the helicopter, I have viewed and photographed endless miles of Iraqi countryside and several towns. I have been most surprised by the varied types of landscape. I always just thought of Iraq as one big desert, but there are marshlands, swamps, rivers lined with palm trees and other green foliage, and American Midwest-looking farmland. Once, I even saw a camel and cattle roaming free.

One small piece of advice: before the helicopter takes off, make sure your backpack is strapped in securely. During my first flight, there was a small incident where I inadvertently kicked off the seatbelt straps holding down my backpack. It was a brief comedy of errors, and I came very close to losing my gear and potentially taking the helicopter down in the process. Luckily, I was in the back seat by myself so no one witnessed my embarrassing moment. Needless to say, though, it would not have been the most honorable way to go.

I’ve also had the opportunity to meet with some members of the Iraqi police and Iraqi army. These interactions have been altogether positive. Like most American military in Iraq, I speak no Arabic, so most of my communication with the locals has been through an interpreter. However, some of the Iraqi police and army that I have met have spoken a little English. They are always very excited to practice their English and frequently are the first to attempt to strike up conversations with the U.S. soldiers.

All of the law enforcement officials I have come in contact with have been very eager to help me accomplish my mission, because they know how dangerous many of these captured detainees are. Very often, we’ll present a photo of one of the bad guys, and they will recognize him immediately and are able to tell us about crimes that the detainee committed that we didn’t even know about.

We have classified files on all of the detainees, sometimes numbering over 1,000 pages each. Part of my job and the investigators’ job is to comb through those files looking for leads, evidence, and witnesses. I do it from an attorney’s perspective, based upon my knowledge of the Iraqi criminal justice system. The memo I produce, along with the file, is passed to the investigator who uses both to formulate a comprehensive investigative plan.

The civilian investigators working for Coalition Forces are simply not permitted to go knocking on neighborhood doors like they would at home. They have to rely on the Iraqi police and army. Therefore, the investigative plan can only be put into action with the help of the local Iraqis. Thus, my job and the job of the investigators essentially contain an unexpected diplomacy component.

There is no legal requirement that says the Iraqis have to help with the high-threat detainee investigations. So, the investigations actually involve much more networking and persuasion than our traditional investigations back home. This is a different culture with different customs and courtesies, and if they are not observed and respected, then you are not going to receive any help from the locals.

I have also done some local national witness interviews. Between courts martial of Air Force members and prosecutions in federal magistrate court of civilians who commit crimes on base, I have done an endless amount of witness interviews in my year at Andrews Air Force Base. However, just like everything else in Iraq, the witness interviews I conducted here were absolutely unique to anything I’d experienced back home.

Through some nontraditional investigative channels, we identified a few local Iraqi citizens in Baghdad who were supposedly eyewitnesses to a murder that one of the south detainees had committed. So, I flew up to Baghdad to follow up on the tip and verify if the witnesses had in fact observed any crimes. Besides finding out that the majority of them had witnessed the detainee commit two murders, I was also given a first-hand lesson into the Arab mind.

Working through an interpreter, the investigator and I attempted to ascertain the facts of the case and what the witnesses had seen. While it sounds like an easy task, Iraqis have a way of telling stories very differently from our own. Instead of the story following a chronological order, the witnesses all jumped drastically to different parts of their stories. At one point, a few of them even attempted to weave in Middle Eastern fables. One second we would be talking about the detainee pointing the gun and pulling the trigger, and the next second we would rewind to three months before the incident took place. At first, we thought it was just the particular witness, but each and every one, despite their varied ages and genders, told their stories in this same general pattern. Combine this with their habitual tardiness and the tasty, unidentified cuisine that we were served for lunch one of the two days of interviews, and it made for one heck of a good memory.

Also, I am happy to say that the detainee is currently being prosecuted for the murders. One down, lots more to go.

Back in May when I first arrived in Basra, my Army partners and I established a step-by-step plan for processing the high-threat detainee cases. Now, three and a half months later, the investigations are proceeding smoothly. I believe we’ve identified more witnesses who can testify against some of our detainees, and I expect that as the investigations continue, this will be the case much more often.

I’ve got about two months left of my deployment, but a lot more work to get done before I leave. While I realize that all the south detainees will not be prosecuted before I leave Iraq, I will be leaving a solid framework for my replacement to pick up where I have left off. I’ve recently engaged some Special Forces troops about some issues (there’s the commando JAG dream again), and some of the ongoing investigations will probably take me very close to the Iranian border. So, two months is still plenty of time for more adventures.

Luckily, now that I am an experienced helicopter-riding veteran, all other passengers can breathe a little easier when I strap in my backpack.

The views expressed in this column are those of the author and do not necessarily reflect the official policy or position of the U.S. Air Force, the Department of Defense, or the U.S. Government.

Capt. Miguel Acosta was born in Tampa and after living in the south suburbs of Chicago came back to Florida to attend the University of Tampa and Florida State University College of Law. Acosta came on active duty in the Air Force in January 2008, stationed at Andrews AFB, home of Air Force One, in the Washington, D.C., area.

A crash course in Iraqi ‘Law and Order’
By Capt. Miguel R. Acosta
Special to the News

Before heading down to Basra, I spent some time reading up on the Iraqi criminal justice system, and I watched Iraq’s version of “Law and Order.”

I spent about a week at the Central Criminal Court of Iraq near the International Zone in central Baghdad, shadowing some of the Coalition Forces attorneys during various proceedings.

As you might expect, the Iraqi system is completely different from ours. What we think of as a trial simply does not exist in Iraq. The Iraqi system is bifurcated between the investigative hearing and the “trial.” All of the action takes place at the investigative hearings, while the trials are just hearings that last about 15 minutes.

Iraq is a civil law country with an inquisitorial legal system. So, unlike in the U.S., where the prosecutor and defense attorney battle it out, in Iraq, the judge does all the heavy lifting.

At the investigative hearing, the investigative judge is presented with all the witnesses and evidence, and then he runs the show. He examines the evidence and questions all the witnesses — even the defendant — and decides what charges will apply.

While I have read in the Iraqi Criminal Procedure Code that the right to remain silent exists in their justice system, it’s quite clear that it is never adhered to in practice. The philosophy is that an innocent person has nothing to hide, so the defendant is expected to answer the judge’s questions. The prosecutor and defense attorney are usually present at the investigative hearing, but rarely ask more than one or two questions.

There are no court reporters or recording devices to take down every word. Instead, the judge’s investigator, essentially a law clerk, writes out a statement dictated by the judge based upon the witnesses’ testimony. Carbon paper is used to make a second copy of the statement which is then signed by the witness. These statements make up the record.

Once the investigative hearing is complete, the investigative judge writes a memo summarizing the proceedings and making a recommendation on charges and guilt. This memo and the witnesses’ statements are forwarded to a three-judge panel for the trial, where the judges briefly question the defendant. The prosecutor and defense counsel read aloud the arguments that they have written, and then the judges make their decision on guilt or innocence.

Unfortunately, the trials involve no tear-jerking closing arguments or heart-stopping drama, as the panel relies heavily on the recommendations of the investigative judge.

Learning to sleep in a Basra ‘coffin’
By Capt. Miguel R. Acosta
Special to the News

I arrived at COB Basra on May 27. It was immediately apparent that the British who formerly occupied the base chose to focus their efforts on things other than amenities. Though it’s gotten better since I first arrived, the base initially lacked certain basic comfort features. For example, at most Coalition Forces bases in Iraq, troops live in small trailers surrounded by large, protective walls and have one roommate. Not so in Basra.

On my first day, I was assigned to a tent in Camp Charlie, a housing area on the outskirts of the base. As I walked into my tent, I discovered that it was lined with what the soldiers were calling “coffins.” While the term is admittedly creepy, a “coffin” is essentially an individualized bomb shelter built of cinder blocks, a metal slab, and sandbags. The coffin contains three walls of cinder blocks with a thick metal slab on top, with several sandbags atop the metal slab. Inside the coffin lies the mattress, with only 16 inches between me and the metal slab.

While there is no room to sit up in the coffin, it is undoubtedly the most safe (and unique) place to sleep on the base. At first I wasn’t a big fan of my new sleeping arrangements, but that attitude quickly changed when the base was attacked with a few mortar rounds as I was getting ready for bed that night.

If nighttime rocket attacks were going to be a common occurrence, then a miniature bomb shelter is definitely where I wanted to rest my head. Iraq is infinitely safer than it was a few years ago, but danger still exists. Sadly, this truth was driven home when in mid-July three soldiers at our base lost their lives in one of these rocket attacks.

At this point, the housing gods have moved me out of my “coffin” in Camp Charlie. While I still live in a tent, I now sleep in a regular single bed with protective bunkers nearby. I appreciate the added comfort of being able to sit up in bed, but I do find myself missing the cinder blocks and sandbags. It was like sleeping in a grown-up version of a child’s pillow fort.

[Revised: 11-22-2014]