A few years ago, I began work on a crime novel set in Iraq. I borrowed the name of a real-life person, Muhsin Khadr al-Khafaji, as a writing prompt. Taking this man’s name seemed like nothing since my character was entirely fictitious and all resemblances purely coincidental.
As I revised the manuscript, I felt I owed it to myself to find out who the real man was. Al-Khafaji was number 48 on the list of “Most Wanted Baathists,” the Three of Diamonds in the US military’s deck of cards.
I had only the grim outlines of the real al-Khafaji’s story. He was sought for his participation in the bloody suppression of the 1991 popular uprisings against Saddam’s regime, and captured on February 7, 2004.
The events of 1991 may be largely forgotten in the United States, but not in Iraq. Encouraged by the fiery rhetoric of President George H. W. Bush, Shi‘a and Kurds rose up against the Baathist state. They might have succeeded were it not for the brutality of loyalists like al-Khafaji. By the time the rebellion was over, one hundred thousand civilians had been killed.
With a bad taste in my mouth, I set out to find what happened to al-Khafaji after his arrest. I found references to a Muhsin al-Khafaji detained in Camp Bucca. But it turned out that he was a different man, not a war criminal but a novelist. His arrest and three-year detention was a horrible error, possibly the result of mistaken identity.
In a 2005 letter from prison, this Muhsin al-Khafaji wrote:
Dear George W. Bush, I write to you from one of the southern prison camps. I came to you Americans in good faith. I imagined that I would find refuge with you. What I found instead was nothing but handcuffs and the cracking of bones. What people know about me is that I write. Sometimes I draw pictures, too, and I’ve got a pretty good hand for calligraphy. And my ability to sit around in cafes is the stuff of legends. I love the West. But not because you go around evangelizing about democracy. What I love is not Samuel Huntington, but Ernest Hemingway. And Walt Whitman. And John Updike.
I went looking for a war criminal, but found a novelist sitting in a US jail talking about some of my favorite American authors. Fantastic and disturbing as it was, this discovery did not relieve me of the task of finding out what happened to the Three of Diamonds. All I knew was that he was detained by US forces, and later remanded to custody with the Iraqi High Tribunal. He is currently serving a life sentence in the hush-hush Kadhimiyya prison, in the same wing as Tariq Aziz.
No matter what one thinks of the US invasion of Iraq, one of the nobler promises of the occupation regime was to try officials for the crimes committed by the Baathist regime against the Iraqi people. Many in the human rights community had hoped for an international, rather than a national, tribunal, as the best way to ensure that trials of these crimes would be fair and transparent. The decision to ignore lessons learned in Sierra Leone and the Balkans ensured that the judges and lawyers with the most professional experience in post-conflict transitional justice would sit this one out, and for the most part they did.
Over these professionals’ objections, the US decided to do things its own way. Rather than waiting for the conflict to end, the Department of Justice began judicial proceedings before the first American boots hit the ground. The original most-wanted list, which became the basis for the infamous deck of cards, was compiled by Justice Department lawyers working closely with Iraqi exiles such as Ahmad Chalabi. Some of the names on that list of most-wanted Baathists were obvious. But, given the thousands of high-ranking Baathists who participated in state crimes, there are real questions about the decision to place names like al-Khafaji on the list and not others.
L. Paul Bremer established the Special Tribunal and appointed Ahmad Chalabi’s nephew, Salim, as its first director. The controversy of the younger Chalabi’s appointment delayed the court’s work for months, and led to a name change. It was in 2005 that the Tribunal began its work in earnest, mounting high-profile trials of top officials. Some, like Saddam Hussein, were quickly tried and executed. Others were tried and imprisoned; a few were acquitted. There was no provision to make the indictments or the findings of the Tribunal public. After the first, most prominent trials, the court’s operations have been more obscure, its proceedings and decisions largely sealed from public scrutiny.
From early on, scores of American judges and lawyers were conscripted into a newly formed Regime Crimes Liaison Office of the Department of Justice in order to advise the Tribunal. They had little, if any, experience with system crimes or war trials. None had any knowledge of Arabic, Islamic law or even Iraqi law. With judges assassinated, fired and resigning, the composition of the Tribunal changed quickly. Likewise, the American experts came and went in a quick series of rotations. In the courtroom, where proceedings took place in Arabic and according to Iraqi law, all this American legal expertise came to matter very little.
By the time al-Khafaji’s case came forward, the Tribunal was being roundly criticized for its lack of transparency and fairness. By then, most of the American lawyers had gone back to their stateside careers, leaving the Iraqis they had appointed to muddle through in a judicial system that was never very insulated from the score-settling politics of post-conflict Iraq. In almost nine years of activity, the Tribunal has compiled a mixed record, shedding light on some of the crimes of the Baathist era, while burying others in shadow.
I have yet to discover the specific charges filed by the Department of Justice against the Three of Diamonds, let alone the court ruling that finally put him behind bars. All I know is that this former Baathist official is in one of the most infamous jails of the old Baathist state.
Whether this is justice, one cannot be certain. But we can be certain that the story of the Three of Diamonds is as American as it is Iraqi. Over the last decade, thousands of American experts and consultants came and went from Baghdad, setting up the Tribunal, drafting Iraqi laws and, in the process, leaving behind a very doubtful legacy.
And, of course, for every Muhsin al-Khafaji doing time for real war crimes there were thousands of other Muhsin al-Khafajis whose imprisonment (and sometimes torture) at American hands were crimes in themselves. These were not only crimes against Iraqis, they were also crimes against our reputation as a nation — and they remain unpunished and uninvestigated.
I went looking for the Three of Diamonds and found a story of injustice that belonged to Baghdad and also Washington, with facts stranger than fiction. Iraqis won’t forget these stories soon, and neither should Americans.