VIII. Access to and Quality of Defense

Over the course of dozens of investigative hearings and several trials, Human Rights Watch observed few instances of active, competent, and prepared defense. On a few occasions, no defense counsel was present during investigative hearings, which proceeded nonetheless. While either court-appointed or private counsel was available for the majority of defendants, the defense was in nearly all instances perfunctory at best. In a majority of investigative hearings that Human Rights Watch witnessed, court-appointed counsel did not speak or otherwise intervene.

In an investigative hearing at the Rusafa branch of the court on May 11, 2008, a police officer named Ammar Feisal faced charges of murder and assorted acts of terrorism allegedly carried out with al Qaeda members in Baghdad's Fahhama district. The charges, drawing in part on the testimony of a secret informant, described Feisal as a member of a cell that set up fake checkpoints in Fahhama in 2006 to carry out sectarian killings and kidnappings. Feisal, whom Iraqi security forces detained in March 2008, had privately retained counsel, but at his hearing he was represented by a court-appointed lawyer who only received the case file immediately before the hearing began.

After hearing the summary of the charges, most of them capital offenses, his court-appointed counsel requested permission from the investigative judge to be excused, citing the obligation to appear at another hearing. The judge refused the request, and counsel complied with the judge's order to stay, but did not speak at any time during the hearing. Following Feisal's account of the killing for which he faced the murder charge, the judge transferred that count to the investigative section of a local court with a request to allow Feisal to summon exculpatory witnesses (something that his court-appointed lawyer had not sought to do). The judge recommended Feisal's continued detention and a further investigative hearing on the terrorism-related charges.[105]

Human Rights Watch attended investigative hearings at the Karkh branch of the court in the cases of three men detained by Iraq's National Guard in Mahmoudiyya in November 2006. Two of the men were brothers facing a series of charges including terrorism, kidnapping, murder, and rape; the third, not related to the others, was detained along with them while riding in their vehicle. All told the court they had had prior investigative hearings in other venues without defense counsel, and were making their initial appearances at the CCCI. All alleged that detention officers abused them during detention and coerced their confessions.

One of the defendants in the case, Sattar Ali Muhammad al-Ubaidi, denied all of the charges and told the investigative judge that interrogators had tortured him, threatened him with death, and forced to him to place his fingerprint on the text of a confession while blindfolded. His brother, Kaiser Ali Muhammad Salim al-Ubaidi, showed the judge scars that he described as the result of abuse during detention by the National Guard. The third defendant, Bassem Muhammad Hussein, told the judge he too had been forced to fingerprint a confession while blindfolded and displayed scars on his foot that he claimed were the result of abuse while in custody of the National Guard. When Hussein referred to other scars that he claimed were the result of torture, the investigative judge told him not to display them. All of the detainees said they had no knowledge of any charges or evidence against them. The court-appointed lawyer present during the hearing asked no questions and made no attempt to question the validity of the statements forming the basis of prosecution.[106]

In a separate set of investigative hearings that Human Rights Watch attended at the same court on May 5, four men detained in Baghdad during a raid by US troops faced charges of illegal possession of weapons. The detainees claimed they were forced to pose for photographs with caches of weapons; those photographs were subsequently introduced as evidence. During the hearings, which a US military JAG and interpreter also attended, one detainee, Nassir Abdelamir Abbas, claimed he had been detained on the basis of confusion between his name and that of "Abu Nasir," an individual sought by MNF troops on the basis of intelligence reports. At that point in the hearing, the court-appointed counsel who had attended both hearings had left the room and did not return subsequently.[107]

In a May 11, 2008 trial hearing at the Rusafa branch of the court that Human Rights Watch attended, a defendant detained in Salahuddin province in 2005 faced charges relating to alleged attacks on Iraqi security forces. The court allowed an initial statement of the charges without defense counsel present, then halted the proceedings to summon a court-appointed lawyer who had no prior knowledge of the case. The defendant recounted being detained in Baiji on suspicion that the vehicle in which he was riding had been stolen; police subsequently told him the vehicle was thought to be connected to the attacks on security forces. During questioning immediately after his arrest, he said, police interrogators told him he was also a suspect in a murder case in the nearby city of Tikrit, and transferred him to the custody of police there. The defendant displayed scarring that he said was the result of torture during interrogations, and that he had agreed to endorse a confession with his fingerprint after one such interrogation session.

At the trial hearing the defendant denied all the charges. He said that he believed he had been detained due to similarity between his name and that of another man who had been arrested in connection with attacks on security forces but released after his family bribed local police. The defense in the trial consisted of repeating the prosecutor's request for dismissal on the grounds that there were no eyewitnesses or physical evidence, and that the confession had been coerced. The presiding judge cited the scarring that the defendant displayed as grounds for concluding that he had been tortured to elicit a confession, and the panel of judges acquitted him.[108]

In addition to the failures to challenge evidence or provide a defense, Human Rights Watch noted broader structural failings in access to counsel that effectively make vigorous defense unlikely. One privately-retained counsel told Human Rights Watch that he had some degree of access to clients in pretrial detention at certain Iraqi government facilities.[109] The overwhelming majority of defendants at the court have court-appointed lawyers with whom they have never met and who have no knowledge of the case prior to the investigative hearing. As a consequence, these defendants are ill-informed about the substance of charges and evidence they face, their rights within the investigative and trial processes, as well as about any appeal proceedings. Court-appointed counsel fulfills a minimum requirement, as outlined in Iraqi law, including the constitution, for representation, but offers little by way of substantive defense. One investigative judge, queried about the quality of representation, told Human Rights Watch, "Effectively and generally they are not fulfilling an active defense role."[110]

Lack of continuity in representation by court-appointed lawyers between the investigative and trial stages further degrades the quality of defense. In only two of the trials that Human Rights Watch observed did defendants have the same counsel that had represented them at the investigative stage. In one of those two cases, a privately retained lawyer had managed to have access to the accused while they were held in Baghdad's transfer prison (Tasfirat). In other trial hearings that Human Rights Watch observed, defense counsel read case files during or immediately before the trial commenced; their interjections, if they made any, echoed reservations that prosecutors themselves expressed about evidence.[111]

Effective lack of access to counsel affects also MNF detainees referred for prosecution before the CCCI. MNF officials told Human Rights Watch that they provide detainees two weeks' notice before their date of referral for prosecution, and afford detainees the opportunity to contact and retain counsel, but that defense lawyers do not seek to visit detainees. According to one legal advisor with the MNF,

While in the Temporary Internment Facility, detainees do have the ability to request a phone call to retain defense counsel. There have been concerns that the detainees are not using it for those purposes, and in the past when there had been 40-50 phone calls arranged we found that they were talking to their families, so we cut back.[112]

Court-appointed defense lawyers counter that they seldom receive notice of a hearing in advance and that, absent arrangements to guarantee their security in visiting an MNF detention facility, they have no access to detainees. They also cited difficulties in access to clients in the holding cells of the courts before investigative hearings. "The hearing is always the first meeting with the defendant," said one court-appointed lawyer, who added that his first reading of case files frequently occurred during the hearing itself.[113] The MNF advisor acknowledged that "coming to Camp Cropper is not easy," but claimed that "the defense counsel does not want to do it."[114] Maj. Gen. Douglas Stone, the head of detainee operations until June 2008, told Human Rights Watch, "Why is this a problem for defense counsel when hundreds of employees manage to come in every day?"[115] Defense counsel cited logistical difficulties and risks to their safety as main obstacles to meeting with clients in MNF facilities.

Whatever the weight of logistical and security considerations, the effect on the court's proceedings is clear. Defendants facing terrorism-related charges and other felonies, some of which carry a death sentence, enter investigative hearings and trials with little or no opportunity to contest or introduce evidence or witnesses.[116]