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VI. Asayish Violations of Due Process

The Asayish routinely violate the due process rights of terror and ordinary criminal suspects in their detention facilities. These violations transgress both Iraqi domestic and international law, and include: failure to inform detainees of the grounds for arrest, failure to bring detainees before an investigative judge in a timely fashion, failure to provide a mechanism by which suspects can appeal their detention, failure to provide a trial without undue delay, failure to provide access to legal representation, holding suspects for prolonged periods of pretrial detention, and extracting confessions through coercion.

By far the most common complaint encountered by Human Rights Watch during its discussions with detainees held in Asayish custody was the absence of information on their legal status and when their cases might be resolved. Human Rights Watch found that Kurdish authorities had been holding the majority of terror suspects in Asayish detention without trial for periods ranging from one to five years. These detainees had not been informed of the charges against them, or given the opportunity to appeal their detention. Of the persons arrested on suspicion of serious felonies, some had been acquitted by the criminal courts or had already served their sentences but remained in Asayish detention.

Amir, who had been arrested by the Asayish in October 2001 when he went to get a security authorization to stay in Sulaimaniya, told Human Rights Watch,

My main problem is why don’t they judge me. I have asked for a trial and I want to understand the law. There was an investigation—but I do not know where I am. I did not get any answers from them when I asked them. I was tortured during the investigation. I was also placed in solitary detention at times. They brought papers before me and I signed under coercion … I have not yet seen a judge.⁹⁴

Fadil, held by the Asayish in Arbil since August 2005, expressed a similar frustration: “If there is nothing on me, why am I arrested? And if I have done something, why don’t I get judged? They have destroyed me.”⁹⁵

The vast majority of detainees held in Asayish custody in both KDP and PUK facilities were individuals suspected of acts of terrorism, sabotage, espionage, drug trafficking, and murder. The biggest group interviewed by Human Rights Watch comprised Iraqi Kurds arrested in the Kurdistan region, many of whom were suspected of alleged membership in armed groups that have carried out or claimed responsibility for acts of violence in the region. Such groups include Ansar al-Islam, Ansar al-Sunna, Jama`at al-Tawhid wal-Jihad and al-Qaeda. According to Kurdish officials, security forces carried out many of the arrests on the basis of intelligence information and surveillance of suspects over a period of time, while they apprehended others on the basis of “confessions” extracted from detainees already in the custody of Asayish forces.

Some of those with whom Human Rights Watch spoke stated that indeed they had had links with such groups, or that they had been apprehended after carrying out, or attempting to carry out, armed attacks against chosen targets. This was rare, however. The majority of detainees claimed not to know why they were arrested, and said they had simply been labeled as “Islamists.”

Jamal, who was arrested by the Asayish in May 2004, told us,

The Asayish came and took me to the old Asayish building. They accused me of being in the Ansar [al-Islam] party. I told them that for the last year-and-a-half I have no longer been part of Ansar. They investigated with me on the first day. Since then, there were no follow-up investigations … I have not seen an investigative judge … They left me here as if I did not exist. No investigation, no judge. As if I was not actually in their detention.⁹⁶

Hadi, who had been held by the Asayish since May 2005, told Human Rights Watch, “my only accusation is that I know friends that are accused of being Islamists … Since 1991, I have no contact with them. And the Islamic group that I belonged to has been dissolved.”⁹⁷

Others said they were being held effectively as hostages in lieu of relatives being sought by the authorities. An 18-year-old detainee told Human Rights Watch that he had been held for over 19 months by the Asayish in Arbil in lieu of his father.⁹⁸ Two other detainees reported being held in lieu of their brothers. One of them, Fu’ad, told Human Rights Watch,

I was arrested on June 24, 2005 … as badil [replacement] for my brother. No investigation was conducted with me. They took my picture and I filled out a form. In the form, they asked me where my brother was. They have nothing on me. I am only a badil… My brother has been out of the house for four or five years. He is accused of terrorism.”⁹⁹

Detainees seemed unaware of what their rights were under the law. Most had not lodged a request for access to defense counsel: detainees were frequently not in a position to seek to engage counsel either due to lack of financial means, or because during the initial months they were held incommunicado, or because they were apparently unaware that it was in their interest or right to do so (not one detainee interviewed by Human Rights Watch had been informed by prison authorities of his right to counsel). In addition, the vast majority of detainees stated that they had not been brought before a judge within 24 hours of arrest,¹⁰⁰ had not had any access to a judge at any point after their arrest, and were not aware that any of the officials they encountered at the detention facility was a judge.

Asayish officials denied these allegations, and told Human Rights Watch that all persons in their custody are routinely brought before an investigative judge within a short period following arrest, their statements taken down, and their continued detention extended in accordance with Iraqi criminal procedure.¹⁰¹ By contrast, detainees described lengthy periods of solitary confinement, during which prison officials subjected them to physical abuse and forced them to sign confessions that they had not read (physical abuse of detainees is discussed in detail in Section VII, below). Ibrahim told Human Rights Watch that he spent “seven months in solitary detention with my hands and eyes tied. This was in the old Asayish Arbil. After seven months, they let me out of solitary detention. After eight months, they allowed my family to visit me.”¹⁰²

The few detainees who confirmed that a judge had questioned them said the session typically lasted a few minutes, during which the judge asked them to confirm what they had stated in their “confession.” Thereafter the judge ordered them returned to their cells and they remained ignorant as to what would happen next. Invariably, this was continued detention without further legal process of any kind.

It was unclear on what legal basis investigative judges were renewing the detention periods of persons held on suspicion of acts of terrorism, particularly as the authorities also argued that legislation currently in force did not enable them to prosecute such offenses. Furthermore, Human Rights Watch could find no evidence suggesting that the relevant criminal courts were authorizing further extensions beyond the initial six months for untried detainees. The Asayish agencies of both the KDP and the PUK have one dedicated investigative judge each.¹⁰³ Other investigative judges not linked to the Asayish do not review these detentions. In the past, some investigative judges told Human Rights Watch that were such cases to come before them, they would in all likelihood order the release of the detainees because there would be no legal basis to authorize continued detention.

The investigative judge assigned to review detainee cases for the KDP’s Asayish declined to meet with Human Rights Watch and referred the organization to the Legal Affairs Unit of Asayish Gishti. The head of that unit, whose principal role is to act as legal advisor to Asayish personnel, claimed that an investigative judge reviews all detentions, albeit after “unavoidable delays in some cases.”¹⁰⁴ The director of Asayish Arbil, Abdullah `Ali, made similar assertions, telling Human Rights Watch that the Asayish held “only a small number of detainees” illegally. He agreed to give us access to the files of detainees held under his authority for purposes of verification.¹⁰⁵ Human Rights Watch welcomed his willingness to do so, but at this writing had not had the opportunity to examine the files.

In a meeting on August 8, 2006, Judge Sirwan Ahmad Salih, the investigative judge responsible for reviewing detentions for the PUK’s Asayish, told Human Rights Watch that detainees accused of offenses punishable under the Penal Code regularly come before him for review of their cases. Such offenses include murder, drug-trafficking, forgery, espionage, and the smuggling of antiquities. The judge admitted that while he implemented the provisions of the CCP, he was unable to question suspects within the 24 hours stipulated by law: “The number of cases is high, at least 20 on a daily basis. For 10 months, I was the only person dealing with this. Now I have two judicial investigators to assist me, assigned about two or three months ago. But we still face on average a 12-day delay before the suspects’ statements are taken down.” With regard to terror suspects, Judge Salih said, “All those accused of offenses under the anti-terror law would come before me, but not the others. Why would I see them if I can’t do anything for them? I only review the cases referred to me by the Asayish … I’m not saying it’s not my responsibility, but it’s a political decision.”¹⁰⁶

His statement was consistent with comments made by Col. Hassan Nuri, head of the Political Unit of the PUK’s Asayish Sulaimaniya, three months earlier. Colonel Nuri had told Human Rights Watch,

Judge Salih only reviews the cases that are covered by law, such as premeditated murder, espionage, and other crimes. In these cases, we inform him of the arrests, and he decides whether to keep the suspects in detention. The suspects’ statements are first taken down by the investigating officer, then by the judicial investigator, and then they go before the investigative judge. These procedures do not apply to terrorists.¹⁰⁷

In a meeting on August 8, 2006, Minister of Justice Faruq Jamil disputed Human Rights Watch’s assessment that the Asayish had not brought the majority of detainees in theircustody before an investigative judge after arrest. He estimated that with regard to those in PUK custody, “only about 7 percent” of detainees were in this category, the rest having had access to a judge.¹⁰⁸ However, data provided by Col. Hassan Nuri two days later contradicted the minister’s assertions. Colonel Nuri said that of the 244 detainees held at Asayish Sulaimaniya on August 10, “about 50 or 60 of them are held in preventive detention without access to a judge.” He added that at al-Salam Garrison, another PUK facility located west of Sulaimaniya city, the Asayish was holding all of the detainees there in preventive detention without access to a judge.¹⁰⁹ Human Rights Watch visited al-Salam Garrison on August 9 and 10. The number of detainees held there, according to prison officials, was 111 on August 9 and 124 on August 10.¹¹⁰

Alleged US involvement in transfers to Asayish custody

During our visits to PUK and KDP detention facilities, Human Rights Watch interviewed 12 Iraqi detainees who stated that Iraqi army personnel and US military personnel had arrested them during joint operations outside the Kurdistan region and subsequently transferred them to the custody of the Kurdish authorities.¹¹¹ Most were Sunni Muslims arrested in the governorates of Mosul and Kirkuk between October 2004 and April 2005.¹¹² Seven of them said that US military personnel had interrogated them before their transfer. None specified the reasons for their arrest. Two said that US forces and Iraqi army personnel arrested them in wider sweeps involving the arrest of scores of others in their neighborhood, and then interrogated them in connection with attacks involving the use of explosives. In most of the cases the detainees were not able to give more precise information about who had arrested them, and appeared to confuse Kurdish peshmerga forces with Iraqi armed forces personnel. Similarly, with regard to the involvement of the US military, the detainees were unable to provide any details regarding the units that may have been involved. They were simply “the Americans.” (Human Rights Watch also interviewed three other detainees who said that US forces were not involved in their arrest or detention, but that prior to their transfer to Kurdish authorities’ custody, US personnel had interrogated them.¹¹³)

Asayish officials confirmed to Human Rights Watch that these 12 detainees were among a larger group who had come into their custody in this manner. PUK officials declined to provide us with further information about such cases or their numbers, limiting themselves to confirming that such detainee transfers have taken place. In mid-May 2006 the director of the KDP’s Asayish Gishti, Ismat Argushi, told Human Rights Watch that US and Iraqi military personnel had arrested these detainees as part of a larger group of “about 300 or 400 people” in joint operations, most of them in Mosul governorate, and then transferred them to the KDP’s custody in late 2004 and early 2005. When pressed for the reasons behind these transfers, Argushi said he presumed that neither the US military nor Iraqi army personnel had any faith that the Mosul police would keep them in detention, and therefore handed them over to the Kurdistan regional authorities.

He added that these transfers had caused problems for the KDP’s Asayish, not only by exacerbating already overcrowded detention facilities but also by increasing the number of detainees with an uncertain legal status. The US military had provided no details regarding the alleged offenses these detainees had committed, he said. “They were dumped on us without any information, and the Americans did not share any intelligence with us concerning them, and never came back to interrogate them.” Argushi said the KDP had released the majority of them at intervals, and were still holding only “some 30 or 40.” He told Human Rights Watch, “We want to hand them back legally through the courts that have jurisdiction in the areas where the crimes were committed,” and expressed optimism that the matter would be resolved “within one month.” He also noted that while there was currently no mechanism to enable these transfers, the KDP had nevertheless handed back a small group of detainees from Mosul to that city’s police force two weeks earlier; he did not know what had happened to them subsequently. If the remaining detainees could not be similarly transferred, the KDP would release them “without further reference to the Americans,” he stated.¹¹⁴

The director of the PUK’s Asayish Gishti, Saifuddin `Ali, told Human Rights Watch that “we have good relations with the Americans with regard to terrorism. It is probable that we have detainees in our custody who are of interest to them and vice versa. We do not carry out joint interrogation of suspects with them, but we do exchange information. Sometimes they hand over people to us from areas outside the Kurdistan region, such as Kirkuk. Sometimes we hand over detainees to them too.” Saifuddin `Ali was not specific about the numbers of detainees involved in such transfers.¹¹⁵

In late May 2006, Human Rights Watch discussed the issue of detainee transfers with Maj. Gen. John D. Gardner, Commanding General of MNF Detainee Operations, and submitted case details of the 12 above-mentioned detainees. Major General Gardner told Human Rights Watch that he had no knowledge of any detainees being held by the Kurdistan authorities at the behest of the US military. He requested additional information on the military units that were allegedly involved in the arrests and transfers,¹¹⁶ and undertook to follow up on the cases we submitted. He added that the Kurdistan authorities should not be holding any detainees on behalf of the MNF, and that they should try or release any such detainees in their custody in accordance with Iraqi law.¹¹⁷

In mid-August 2006, Gardner told Human Rights Watch that no records had come to light indicating that US military personnel had been involved in the arrest, interrogation, or transfer of the 12 detainees. Further, he stated that in cases where suspects are arrested in joint operations with the Iraqi armed forces, the US military was unlikely to keep records of such arrests, except where the suspects are transferred to the custody of Detainee Operations.¹¹⁸ On August 17, Human Rights Watch submitted to Major General Gardner a list of 25 other Iraqi detainees held in KDP custody. The director of the KDP’s Asayish Gishti, Ismat Argushi, had provided the list at the organization’s request several days earlier.¹¹⁹ As in the previous cases, almost all of the 25 detainees on the list were Sunni Arabs from the Mosul region reportedly arrested between late 2004 and early 2005 in joint US-Iraqi operations and then transferred to the Kurdistan region.

On the basis of this and other information provided, Major General Gardner told Human Rights Watch that he would follow up the matter directly with the Kurdistan authorities. Accordingly, he met with Ismat Argushi in Arbil on September 1 and with Saifuddin `Ali in Sulaimaniya on September 11, 2006. In regard to both meetings, Gardner told Human Rights Watch that he had requested further information on all cases where US forces were allegedly involved in the transfer of detainees to the custody of either the KDP or the PUK. He stated that he had made it clear in both meetings that the MNF did not want any such detainees to be held “at our request.”¹²⁰ The PUK did not provide Gardner with details on such cases, but the KDP did: Ismat Argushi told Human Rights Watch during a meeting several days later that he had provided the complete list of names and details. He did not indicate how many names were on the list, but added that he had sent the same information to the Ministry of Interior in Baghdad. Of those listed, Argushi said he considered there was sufficient evidence to refer some 40 or 50 of the detainees to trial. For the rest, he would await feedback from the Ministry of Interior and from MNF Detainee Operations. If no feedback was forthcoming, he said he would order their release.¹²¹

In mid-October, Major General Gardner told Human Rights Watch that an investigative team from Detainee Operations would conduct interviews with as many of the detainees listed by the KDP as possible, in an effort to obtain information regarding possible US involvement in their transfer to the custody of the Kurdistan authorities. Some of those interviews took place several days later.¹²² With detainee names and other information provided by the KDP, the US investigative team also made contact with Iraqi army personnel in Mosul who were reportedly involved in the handover of the detainees. Follow up on these cases was ongoing at this writing. Ultimately, Gardner told Human Rights Watch, he would communicate the results of the investigation he had ordered into these cases to the Ministries of Justice in Baghdad and Arbil, and urge Kurdistan authorities to try or release the detainees in accordance with Iraqi law.¹²³

On November 12, 2006, Major General Gardner informed Human Rights Watch that he had written to KRG Minister of Justice Faruq Jamil informing him of the completion of the MNF investigations into the cases of detainees held in KDP custody following their transfer from Mosul. He stated that the MNF was unable to fully identify which detainees might have been initially detained by US forces, but that he had determined that further detention of these individuals was not in the security interests of either the United States or Iraq. Gardner requested the minister of justice’s assistance in securing the prompt and safe release of the detainees to their family members unless an investigative judge, in reviewing cases, found evidence to justify extending a particular individual’s detention in accordance with the law. Gardner further requested that the minister of justice notify him promptly of the releases.