The Laws of War: Right of Seizure

Despite the appearance of wartime pillage, the laws of war permit the seizure of public enemy documents for strategic advantage and occupation. Article 53 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land and its annexed regulations allow the seizure of moveable government property for military operations and necessity; it can be freely requisitioned by the occupying power and becomes its property without compensation. In other words, it becomes spoils of war.Footnote ² Under the Convention, an army of occupation can “take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores of supplies, and generally, all moveable property belonging to the State which may be used for military operations.”Footnote ³ This provision grants the capturing state broad discretion in defining what constitutes enemy property to be taken for military advantage. Similarly, Article 52(2) of Additional Geneva Protocol I (governing international conflicts) permits attacks on or seizures of “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in circumstances ruling at the time, offers a definite military advantage.”Footnote ⁴

Nonetheless, the laws of war include expansive cultural-property protections aimed at safeguarding the cultural patrimony of nation-states in war and occupation. The treaties governing warfare comprise the 1907 Hague Convention, the 1949 Fourth Geneva Accord and its two additional protocols of 1977, and the 1954 Hague Convention and its two protocols of 1954 and 1999; these treaties stand together in prohibiting the pillage, destruction, theft, or misappropriation of cultural heritage by attacking or occupying forces. The treaties immunize the property of municipalities and cultural institutions dedicated to religion, charity, education, and the arts and sciences from seizure, attack, or willful damage. The 1954 Hague Convention, which the US refrained from ratifying until 2009, expressly deals with cultural property; it lists repositories of cultural objects and materials, including those found in museums, libraries, and archives, as examples of cultural heritage that must be safeguarded in war. It obligates combatants to prohibit and put a stop to theft, pillage, misappropriation, and vandalism of cultural property, in addition to refraining from requisitioning cultural-heritage materials.Footnote ⁵

The 1954 Hague Convention obligates defenders to mark their cultural sites with an internationally recognized shield, or otherwise to safeguard their cultural property. Failure to do so may result in loss of protection under the treaty.Footnote ⁶ The Convention universalizes a nation's cultural property in characterizing it as the “cultural heritage of all mankind.” The treaty states that cultural heritage covers, irrespective of origin or ownership, the “moveable or immoveable property of great importance to the cultural heritage of every people.”Footnote ⁷ It defines for protection two types of cultural property; the first class is entitled to standard protections provided under prior treaties, and the second and narrower class affords enhanced protection that requires signatory states to designate and register specially protected cultural property in an International Register of Cultural Property.Footnote ⁸ The 1954 Hague Convention's fundamental protections can be waived or ignored “in cases where military necessity requires,” albeit there is no clear definition of what constitutes military necessity.Footnote ⁹

The separate 1954 Hague Protocol forbids occupying forces and authorities from exporting cultural spoils from occupied territories and mandates the return of any illegally removed cultural materials to the countries of origin. It further requires that any cultural property removed from enemy territory for safekeeping must be returned at the end of hostilities. Although the 1954 Hague Convention and its first protocol have advanced international norms governing the protection of cultural property, it has largely failed as an enforceable body of law. This weakness stems primarily from the reliance of these treaties on national laws and ad hoc criminal tribunals to prosecute individuals guilty of serious violations.Footnote ¹⁰ The second protocol (1999) to the 1954 Hague Convention expands the protection of cultural property, provides for improved safeguarding, extends these provisions to non-international conflicts, and criminalizes violations of the Hague protocols.Footnote ¹¹

Although these conventions and protocols do not explicitly mention captured adversary public documents as either cultural heritage or government enemy property, they allow belligerents latitude to seize almost anything in cases of military necessity.Footnote ¹² In other words, the international protections afforded cultural property, including even cultural or historical archival records, may be overridden if its seizure and use makes “an effective contribution to military action.”Footnote ¹³ The current Manual of the Law of Armed Conflict of the UK Ministry of Defense offers a similar view on the right of seizing archives in hostilities, even if housed in protected cultural institutions:

The threshold for protecting “archives” or noncurrent historical, administrative, and legal records as cultural property may therefore be exceedingly low. After all, unlike a “collection of paintings in an art museum, combatants cannot assume that national archives have no military or intelligence value.”Footnote ¹⁵ The current American counterinsurgency manual, for example, notes the importance of “historical documents and records” in analyzing insurgent networks.Footnote ¹⁶ As one scholar has observed,

Indeed, the seizure of enemy government records and archives may provide a trove of information on an adversary's classified diplomatic secrets, national security policies, intelligence operations, strategic resources, and previous and current military capabilities. Moreover, historical records may be exploited for their legal and administrative value in administering a military occupation, establishing civil order, determining legal rights, detaining suspects, or prosecuting crimes. In Iraq, the capture of enemy documents was considered vital as potential evidence for prosecuting former Baathist officials for human rights crimes. In other words, the laws of war provide little protection from the seizure of archival or historical records if they are deemed imperative for military operations or occupation, even though they may reside as cultural property in libraries, archives, or other institutions devoted to the arts and sciences. Moreover, these laws favor capturing forces in determining what documents hold intelligence value for military advantage. In World War II, the US military directed its officers to consider all archives valuable for intelligence, “whether located in ancient archives, large depositories, the most modern archives, or in current office papers.”Footnote ¹⁸ Indeed, in a foreign land where US forces may not know the language and culture, almost anything may be swept up in the effort to find enemy intelligence.

Further, none of the conventions of war regulate the capture, custody, use, or ultimate handling of seized wartime public enemy documents with intelligence value; their ultimate fate remains in the hands of the victor state. Article 56 of the 1907 Hague regulations does not even obligate the restitution of cultural property seized during hostilities, even though it prohibits such seizures, destruction, and willful damage to cultural heritage and makes these acts subject to legal proceedings. The 1954 Hague regime corrects this deficiency by requiring the capturing state to repatriate cultural objects and materials at the end of hostilities. Nevertheless, amid the chaos of war, it is often impossible to distinguish solely cultural documents from those with potential intelligence value, requiring such legal distinctions to be divined later or resolved in post-conflict diplomacy.

As the victor state in control of the Iraqi records, the United States owns the position of determining when the exploitation of the seized documents will be exhausted; when this strategic intelligence may be considered cultural property; and when, if at all, some or all of these materials will be returned. If the US decides to return the documents to Iraq, it will not be because the laws of war require it, but because American authorities consider it diplomatically advantageous. An analysis of these factors provides insight regarding how enemy records are treated from their initial capture and exploitation as strategic intelligence to their eventual consideration as cultural heritage warranting partial or wholesale repatriation.

Iraq: Significance of Captured Wartime Records

Because the laws of war include no legal constraints on exploiting lawfully captured enemy records for advantage, the US has utilized the seized Iraqi documents according to its own discretion. When US collection teams moved throughout Iraq, they seized an array of analog and digital materials that would have been unimaginable even during the 1991 Gulf War. The Pentagon defines captured enemy documents as including any piece of recorded information – written, printed, engraved, and photographic material – as well as data on weather and terrain conditions. This might comprise printed personal and identity material taken from enemy combatants, including letters; notes; diaries; photographs; passports; driver's licenses; or military, police, or civil ID cards.Footnote ¹⁹ Under the 1956 US field army manual, these personal documents or “private property validly captured on the battlefield” are the property of the United States.Footnote ²⁰ Other high-value material might include anything from field orders, maps, codes, field manuals, and reports to all manner of flash drives, hard drives, computer peripherals and digital devices, to cell and satellite phones.Footnote ²¹ The effort to rapidly extract actionable intelligence about the enemy from this vast range of data required a well-organized and highly technical operation.

With the wars in Iraq and Afghanistan, the US military has sought to hone its procedures from seizure through rapid processing, analysis, extraction, and dissemination of reportable intelligence; these efforts reflect the lessons learned in handling an ever-growing and complicated mix of captured wartime analog and digital materials. According to the Pentagon's own guidelines, there exists “a critical need to identify new tactics, techniques, and procedures” in exploiting enemy data.Footnote ²² Leveraging the national shared harmony database, which serves as a national repository for foreign and captured intelligence and media, including their translations, represents another critical component in maximizing exposure of this data to the American intelligence community worldwide.Footnote ²³ As might be expected in the digital age, the forensic tools used to harvest and analyze seized data are evolving rapidly and broadening the scope of what can be gleaned from captured materials.Footnote ²⁴

The exploitation of this captured data, however, comprises only part of the larger effort of establishing information supremacy on the battlefield and other operational environments to understand the adversary's forces, capabilities, and intentions. These aims are spelled out more specifically, if not bureaucratically, in the recently updated doctrine on intelligence support to military operations issued by the Joint Chiefs of Staff. This doctrine, which is considered “authoritative,” outlines the overall critical nature of intelligence for commanders in the theatre of war. It states, for example, that commanders “use intelligence to anticipate the battle, visualize and understand the full spectrum of the operational environment, and influence the outcome of operations.” In war, among other things, this entails providing commanders at all levels with timely and accurate assessments of an adversary's “dispositions, strategy, tactics, intent, objectives, strengths, weaknesses, values, capabilities, and critical vulnerabilities.” Beyond military data, the doctrine notes the importance of assessing political, economic, social, information, and infrastructure factors in hostile operational environments.Footnote ²⁵ According to the Joint Chiefs doctrine, the intelligence process consists of a wide variety of interrelated intelligence operations: “planning and direction, tasking and collection, dissemination and integration, and evaluation and feedback.” These intelligence operations “must focus on the commander's mission and concept of operations.”Footnote ²⁶

In war, the sheer scope of US intelligence operations involved in the collection of human, signal, geo-spatial, biometric, overhead reconnaissance, and other intelligence-gathering methods can only be described as extraordinary. Beyond capturing enemy documents, other specialized mobile collection teams act to collect human and weapons intelligence.Footnote ²⁷ In other words, although the capture of wartime records and analog and digital media in the theatre of war and occupation constitutes a critical component for understanding enemy capabilities and intentions, it comprises only one small element in the much larger world of US intelligence data collection and exploitation. Since the 9/11 terrorist attacks on American soil, there are now more than a thousand government organizations and over a thousand private companies and contractors devoted to intelligence, counterterrorism, and homeland security in about ten thousand locations across the United States. The Defense Department alone houses about two-thirds of these intelligence programs.Footnote ²⁸ Many of these entities serve to collect, analyze, exploit, and transform raw data into actionable or useable intelligence, even if these agencies are plagued by information overload and considerable redundancy of effort and analysis.Footnote ²⁹ To harvest actionable data, an array of innovative technologies are often employed, including artificial intelligence or psyche-assessing algorithms that have proven more accurate than human analysts in sifting through reams and bits of data to predict the behavior of capricious regimes.Footnote ³⁰

Exploitation of Captured Enemy Documents

In the chaos and confusion surrounding the fall of Baghdad on 9 April 2003, US-led coalition forces, Iraqi opposition groups, and individuals confiscated millions of Iraqi state documents from government ministries, Baathist headquarters, former intelligence and state security offices, military garrisons, and other locales across Iraq.Footnote ³¹ As Baathist officials fled their posts immediately before and during the war, they left behind stacks of sensitive state security records and self-incriminating documents relating to their past human rights crimes; other officials carried away documents to their homes apparently for safekeeping, but later abandoned them in public buildings as military defeat became imminent. In other Iraqi cities and towns, former government officials shredded and burned numerous documents, while many others were destroyed in the wartime aerial bombing campaign. The mass looting and destruction of government property by Iraqis in the days and weeks following the invasion resulted in further destruction of countless records.Footnote ³²

Nevertheless, despite initial lapses in securing Iraq's state security documents, US mobile collection teams swept up millions of documents as potential sources of intelligence about Saddam Hussein's government. The taking of the records was permissible under the 1907 Hague Convention and the US field army manual. Article 52(2) of Additional Geneva Protocol I also permits the seizure of enemy materials in pursuit of military advantage, even though the US was a not a signatory to the treaty during the Iraq War. In addition to their intelligence value, many of the confiscated documents were politically explosive in identifying tens of thousands of security agents and informers by name. Although there was little concern in the early stages of the invasion and occupation about how returning these security archives could someday contribute to retaliatory violence or vengeance killings in an unreconciled country, it may now become an important factor as the US government considers whether and how to repatriate the documents to Iraq. Initially, US forces confiscated the records with the sole and urgent aim of exploiting them for intelligence on enemy combatants, as well as on Saddam Hussein's alleged weapons of mass destruction and connections with international terrorism.

The US defines “exploitation” in part as “taking advantage of any information that has come to hand for tactical, operational, or strategic purposes.”Footnote ³³ In the Iraq War, the exploitation of the seized documents began immediately after their capture; they were subsequently subjected to more detailed analysis as the records underwent a process of triage, translation, and promulgation.Footnote ³⁴ To rapidly process the captured Iraqi material for actionable intelligence, the US constructed the Combined Media Processing Center at Camp As Sayliya, Qatar (CMPC-Q).Footnote ³⁵ US mobile collection teams seized not only more than a 100 million textual documents and thousands of audio- and videotapes, but also computer hard drives, devices, and peripherals from Saddam Hussein's ministries of repression, military and industrial sites, and other locations. The seizure of this material played a critical role in the invasion's immediate aftermath. Following the fall of Baghdad, the Pentagon's priority included hunting for weapons of mass destruction and confirming prewar intelligence of the regime's connection to global terrorism. By the end of 2003, the Iraq Survey Group uncovered no evidence of WMD. Further, Saddam Hussein's links to terrorism, especially al Qaeda, remained doubtful. These findings led American intelligence to conclude that a search of the regime's own documents might reveal critical evidence of Iraq's WMD and connections to global terrorism.Footnote ³⁶ The documents also held strategic and operational value for ongoing battlefield operations, intelligence and counterintelligence, technical analyses, psychological operations, location of mass graves, and evidence of human rights crimes for prosecution.

The media processing center in Qatar began with twelve personnel in May 2003, but employed four hundred by January 2004. By this time, the exploitation center had triaged and scanned more than seven thousand boxes of documents, containing over 10.5 million pages of captured former Iraqi regime files. By September 2005, some thousand Arabic linguists and analysts were sifting through, prioritizing, and processing 48,000 boxes of captured records and media.Footnote ³⁷ Due to the actionable and time-sensitive nature of intelligence, media processing linguists began identifying materials of high exploitation priority based on intelligence imperatives. At the same time, the initial processing of digital media such as hard drives were routed to the media lab on an isolated “Dirty LAN” network, enabling forensic investigators and Arabic translators to assess their content and prioritize its exploitation. Working from image copies of the media so as to preserve the originals, forensic specialists also performed an in-depth analysis of the images. This process involved producing an English and Arabic 1,806-keyword search, file signature analysis, email address search, graphics-file finder search, and large JPEG picture search. Special filters also were employed to “extract text, internet, graphics, e-mail, audio and video files for later use.” Analog media received processing through the media lab where they were analyzed, prioritized for exploitation, digitized, and imported into the CMPC-Q's main Translator LAN.Footnote ³⁸

The most critical step involved triage, enabling translators and analysts to prioritize data extraction of highest intelligence value. Translation teams produced summaries of the contents of the materials as well keyword indexing of organizations, personalities, equipment, and other key data named in the files. The documents and media were then uploaded daily into the National Harmony database to maximize their exposure to the intelligence community.Footnote ³⁹ Although the hunt for WMD took precedence, there were other intelligence priorities. These included, for example, information on missile delivery systems, the Iraqi regime's strategic intent, war crimes and crimes against humanity, and counterintelligence data. If nothing else, these priorities indicated that after the hunt for WMD, the focus was on subduing the remnants of Saddam Hussein's armed forces, defeating the growing insurgency, and bringing to trial former Baathist officials responsible for crimes against humanity.Footnote ⁴⁰ In the end, the frenzied search for weapons of mass destruction, including scouring captured documentary evidence, proved futile; the Iraq Survey Group concluded that Saddam Hussein had terminated his nuclear weapons program in 1991.Footnote ⁴¹

Politicization of Captured Iraqi Materials

With the failure to uncover Saddam Hussein's allegedly reconstituted WMD, it was not long before the captured documents became politicized in the crossfire over the war's rationale. The Bush–Cheney administration aggressively justified the war on the basis of preventing the Saddam Hussein regime from obtaining weapons of mass destruction and distributing them to anti-American global terrorist networks, including al Qaeda. Nevertheless, following the invasion, American intelligence and presidential commissions had reached the conclusion that Saddam Hussein had possessed no unconventional weapons and no direct ties to al Qaeda before the 2003 war.Footnote ⁴² With no evidence to support the administration's compelling war narrative, in 2006 the US intelligence community came under pressure from Congressional Republicans and the White House to make the 48,000 boxes of scanned captured documents and media available on the Internet. As most of the documents, excepting those with purely cultural value, are considered spoils of war under Article 53 of the 1907 Hague Convention, the US faced no international legal constraints regulating their use. In other words, the US was free to expose, display, even destroy the records as it so deemed.

The director of national intelligence, John Negroponte, resisted this ill-conceived experiment for months before capitulating under pressure, arguing that the documents comprised too much sensitive, actionable intelligence for public release.Footnote ⁴³ Other intelligence officials expressed serious concerns about exposing millions of raw documents in Arabic – which also contained hearsay, disinformation, and forgeries – to an army of public amateurs. The documents, they said, would reveal nothing new and that there was no smoking gun regarding weapons of mass destruction or al Qaeda.Footnote ⁴⁴ Nonetheless, the Republican chairmen on the House and Senate intelligence committees stated that the records’ public exposure would revitalize the search for clues about Saddam Hussein's allegedly reconstituted and unconventional arms programs in the years before the March 2003 invasion.Footnote ⁴⁵ Republican House Committee Chairman Pete Hoekstra led the campaign for exposing the captured documents on the Web, asserting that the materials had not received adequate scrutiny. He said that he wanted to “unleash the power of the Net” to perform translation and analysis that might take the government decades. When criticizing Negroponte's office for opposing declassifying the material, he argued that there “may be many documents that related to [Iraq's] WMD programs,” which should be released.Footnote ⁴⁶ Hoekstra overcame Negroponte's resistance by appealing to President George W. Bush and by proposing legislation to force the records’ release.Footnote ⁴⁷ In a February 2006 White House meeting with Congressional Republicans and several senior national security officials, Bush expressed displeasure over the delay in releasing the documents; the President reportedly pressured national security adviser Stephen Hadely to “put this stuff out.”Footnote ⁴⁸

The timing of their release gave the documents a potent political charge as public doubts about the war were driving Bush's approval ratings to new lows. The White House hoped that a renewed debate over Saddam Hussein's weapons and terrorist ties would raise the President's standing.Footnote ⁴⁹ John Prados, an analyst with the National Security Archive, a Washington, DC-based nongovernmental research institute, observed that the “administration was under fire for going to war when there was no threat, so the idea here must be to say there was a threat” – a conclusion reached by a growing crowd of bloggers on the political right.Footnote ⁵⁰ Former CIA and State Department counterterrorism specialist Larry C. Johnson scoffed at the document free-for-all. “It's like putting firearms in the hands of children,” he said. “The problem is that the documents without context aren't going to tell you a lot.”Footnote ⁵¹

Months after first exposing the documents on the Internet, the Senate Select Committee on Intelligence issued a September 2006 report concluding that prewar intelligence on Saddam Hussein's links to al Qaeda and efforts to reconstitute weapons of mass destruction was faulty. The report cited DIA officials who argued that their initial review of more than 120 million documents did not miss any evidence regarding Iraq's ties to terrorism.Footnote ⁵² During an interview with Senate Committee staff, the lead DIA analyst who was pursuing possible links between the Iraqi regime and al Qaeda noted that the DIA “continues to maintain that there was no partnership between the two organizations.”Footnote ⁵³ It was perhaps difficult to imagine how publicly exposing the documents on the Web could out-perform the DIA's own extensive techniques and procedures for extracting high-level intelligence. If nothing else, it signified a resounding no-confidence vote in the Iraq Survey Group's findings and in the intelligence community's ability to uncover what some were so utterly convinced of finding regarding the existence of Saddam Hussein's weapons of mass destruction and ties to al Qaeda.

In March 2006, the Office of the Director of National Intelligence began releasing the documents on a website run by the US Army Foreign Military Studies Office, accompanied by a disclaimer noting that the “U. S. government has made no determination regarding the authenticity of the documents’ validity or factual accuracy of the information contained therein”.Footnote ⁵⁴ The experiment quickly went awry when the site posted detailed accounts of Iraq's secret nuclear research before the 1991 Persian Gulf War. According to the New York Times, the documents constituted a basic guide to building an atom bomb; approximately a dozen documents contained charts, diagrams, equations, and narratives about building a bomb that far surpassed what was available elsewhere on the Internet. In November 2006, after this botched experiment in public document exploitation and access, the website was shut down, a demonstration of how politics can badly compromise professional intelligence work.Footnote ⁵⁵

Additional Levels of Analysis

At the same time as Republican lawmakers were second-guessing the intelligence community, the documents were undergoing analysis by the Pentagon's Iraqi Perspectives Project, a research effort led by the US Joint Forces Command to glean lessons from the 2003 military campaign and earlier confrontations with the Saddam Hussein regime. The fall of Baghdad in April 2003 opened one of the twentieth century's most secretive and brutal dictatorships to outside examination, presenting a highly unique opportunity for military leaders and historians to study captured enemy documents and understand the decision-making process of a former adversary state. Indeed, for the first time since the end of World War II intelligence analysts could pursue the opportunity of evaluating military events not only from the American perspective but also from the vantage point of the former enemy political and military leadership.

To exploit this opportunity, the Joint Forces Command commissioned a series of studies on the nature of Saddam Hussein's authoritarian regime based on captured enemy documents.Footnote ⁵⁶ These studies have drawn upon interviews with dozens of captured Iraqi military and political officials and thousands of seized records and media archives, resulting in a dramatically altered understanding of the war and the Saddam Hussein regime's internal calculations.Footnote ⁵⁷ Before the capture of this trove of records and media, most of it was considered highly classified by the Iraqi regime. As extensive as the captured archive is, it is uneven and incomplete. As noted previously, amidst the chaos of the Saddam Hussein's regime collapse, many records were destroyed and looted in the war or were lost. The studies by the Iraqi Perspectives Project have relied heavily on the regime's national-level military, intelligence, and presidential office records. Documents relating to the Baath Party and various local and regional arms of the regime have proved far less complete, at least those in the hands of the Pentagon. Shortly after the US invasion of Iraq, most of the Baath Party records were turned over to the Washington, DC-based Iraq Memory Foundation, founded by former Iraqi dissident Kanan Makiya, and now reside at Stanford University's Hoover Institution. Even so, these materials reveal the Baathists as anything but exemplars of government integrity; given the regime's incentive structures, Iraqi officials “often embedded falsehoods in their detailed correspondence to deflect accountability”.Footnote ⁵⁸

In 1994, human rights analysts who examined the numerous documents captured by the Kurdish peshmerga in the March 1991 uprising cast the regime's records in more dramatic terms, observing that they reflected the daily operations of a police state beset by paranoia at nearly every rank of the hierarchy. As compulsive bureaucrats, Iraqi officials kept track of every communication and referenced their documents to one another in meticulous detail. Iraqi civil servants who were responsible for carrying out unsavory directives of the Iraqi leadership frequently attempted to revert accountability for their actions back up the chain of command or onto the central authority, a deliberate strategy to avoid Saddam Hussein's periodic purges of members of his inner circle, the military, and other bureaucratic agencies.Footnote ⁵⁹

In 2008, the Pentagon opted to pursue another level of analysis by providing funding for social-science research into unclassified materials of the Saddam Hussein regime. Speaking to the Association of American Universities in Washington, DC on 14 April 2008, Secretary of Defense Robert M. Gates outlined the creation of the Minerva Research Initiative, named after the goddess of wisdom and war. The initiative aimed to sponsor social-science research in areas of strategic importance to US national security policy. Recalling the Cold War relationship between the US military and higher education, Gates said that the Pentagon once again sought to tap the intellectual capital of universities to further understand America's new and emerging national security threats. Indeed, throughout the Cold War, universities served as vital centers of new research, often funded by the government, as well as ideas that gave rise to new fields, such as game theory and Kremlinology. The Pentagon and academic disciplines worked even closer during World War II when numerous anthropologists, psychologists, and others were enlisted in the war effort.Footnote ⁶⁰

If nothing else, Minerva reignited interest in social-science research after a prolonged period of neglect. It aimed to recapture the Pentagon's past successes with academia – to mobilize the creative and intellectual prowess of area specialists who were fluent in critical but unrepresented languages within the military and who were involved in a variety of disciplines ranging from psychology to demographics and anthropology to economics. The initiative reflected the Pentagon's aim of venturing beyond military tactics to explore the social and behavioral dimensions of national security issues. But rather than facing a threat from a single ideological entity – the Soviet Union – the US was now facing challenges from multiple sources: malignant forms of terrorism; ethnic strife; failed and failing states; resurgent powers; and disease, poverty, and climate change.Footnote ⁶¹

Gates envisioned Minerva as a consortium of universities that would promote research crucial to national security in five areas, including the development of China's military and technological prowess, and how religion, culture, economics, and politics interact in the Islamic world to foster political violence and terrorism. These consortia also might serve as repositories of open-source documentary archives. One of these areas was the Iraqi Perspectives and Terrorist Project, which would make available Iraqi, Taliban, and al Qaeda documents seized in the Iraq and Afghanistan wars. The defense secretary noted that only a small number of these documents had been exploited. “In its breadth and potential value,” he said, “this collection can only be compared to the Smolensk archives on which Soviet scholars like Merle Fainsod based much of their work.” He anticipated that further research in the materials “could yield unprecedented insight into the workings of dictatorial third-world regimes.”Footnote ⁶²

The history of cooperation between the Pentagon and the social sciences, however, has ranged from collaborative to hostile, including the recent controversy surrounding the use of anthropologists in human terrain teams in Iraq and Afghanistan. Minerva also initially ignited academic concerns about the appropriate relationship between university research programs and the state, the militarization of the social sciences, and the possible use of these disciplines as a tool for military violence. One scholar likened it to Project Camelot, in which the Department of the Army and the Special Operations Research Office recruited social scientists into classified counterinsurgency and counterrevolutionary research programs involving Southeast Asia and Latin America. The project was quickly terminated in 1965 amidst considerable controversy, just months after its existence was leaked to the press in Chile.Footnote ⁶³ But the Pentagon never envisioned Minerva as a classified research program. When announcing Minerva, Gates stressed that its “key principle” would be “complete openness and rigid adherence to academic freedom and integrity.”Footnote ⁶⁴ The controversy subsided after the Pentagon turned over the administration of the program to the National Science Foundation, an independent federal agency, to ensure neutrality and the free course of government-funded academic research.

The practice of making accessible enemy documents dates to the Civil War, when Congress passed a 19 May 1864 resolution to collect missing records and produce copies of battlefield reports for public use. This initiative faltered, however, and it was not until 23 June 1874 that Congress took the first decisive step in adopting legislation “to enable the Secretary of War to begin publication of the Official Records of the War of the Rebellion, both of the Union and Confederate Armies.” This legislation provided for a comprehensive publishing effort including not only battlefield reports, but also “all official documents that can be obtained by the compiler, and that appear to be of any historical value.”Footnote ⁶⁵ This war-documents venture set a precedent for subsequent efforts to compile captured enemy records for public use relating to major American wars, albeit it has been inconsistently followed. The scholarly initiative to understand the Saddam Hussein regime's inner workings involved the first such effort since after World War II, when the US government microfilmed and fostered research and study of captured German and Japanese documents.Footnote ⁶⁶ In 1955, the creation of the American Committee for the Study of War Documents aimed to “direct an organized effort for the fullest scholarly utilization of documents which came into the possession of the Allies as a result of World War II.”Footnote ⁶⁷ Similarly, in 2008, the Defense Department tasked the Institute for Defense Analyses (IDA), a Pentagon-funded think tank, to set up the Conflict Records Research Center (CRRC) to promote academic study of declassified materials captured in the Iraq and Afghanistan wars.

The IDA launched the CRRC in 2009 as a digital research and archival enterprise at the National Defense University in Washington, DC; it represents the first of its kind and one of the end results of the document and media exploitation process. The CRRC exerts no control over the original physical records; it derives digital copies of the documents from an unrestricted database. The documents’ originating source, however, is the national Harmony database, which holds scanned copies of the original physical records along with their approximate partial or complete English translations, depending on their significance. In other words, the center provides access to digital copies of digital copies of captured records and media. Given the urgency of finding actionable intelligence, analysts at the media processing center in Qatar initially produced rough and abbreviated translations of the original captured records, varying dramatically in quality and accuracy. The CRRC addresses these deficiencies by providing a complete and accurate English translation of the downloaded digital copies in its own research database. These translations have proven invaluable in maximizing access to the vast majority of CRRC researchers who do not read Arabic. The CRRC is a clever concept; beyond leveraging the expertise of academia to help decipher Middle Eastern authoritarian regimes and terrorist networks, the center conveys a sense of transparency on behalf of the Pentagon and intelligence community in an otherwise closed and secreted world.

More important, the center represents a critical operation in preserving world memory. Still in its infancy, the CRRC has already advanced the development of a highly significant digital archive of captured records. The overwhelming majority of its work lies ahead, however. The CRRC has produced nearly 40,000 unclassified and fully translated pages of digital documents and 175 hours of audio recordings for study and research, but millions of additional pages and thousands of hours of audio files await public release. The center has only now received permission from its senior leadership council to make available unclassified records that were captured from al-Qaeda and associated movements (2003–12). Nonetheless, the CRRC, which receives funding from the Office of Secretary of Defense for Policy (OSDP), may become a casualty of Pentagon budget cuts. This funding is slated to end by fall 2013 and efforts are under way to research creative ways to continue the center's important work.Footnote ⁶⁸

The possibility of aborting the center's activities would have significant consequences for the understanding of contemporary Middle East and American history. If the center's vital operations are discontinued, the largest trove of captured documents and media since World War II would unlikely see the light of day; it would remain buried indefinitely in US intelligence channels. This would irreversibly impoverish knowledge of critical aspects of world history, much as our understanding of Hitler's regime would have been inconceivable without the broad public availability of the captured Nazi documents. Just as the National Socialist materials provided invaluable scholarly and policy insights on German, European, and Soviet affairs, research in the CRRC records promises new and critical insights regarding Iran, Syria, and other authoritarian and semi-authoritarian regimes. The Pentagon's shortsighted policy on the CRRC, however, may summarily terminate this promise before many of the most important insights can be gleaned from the records.

Iraqi Cultural Officials Demand Return of Seized Materials

Iraqi cultural officials who oppose making the captured archive available to academic researchers may take satisfaction in this development. In recent years, these officials have condemned the CRRC as a violation of Iraqi rights and an instrument of cultural imperialism. In a 2008 essay on the Social Science Research Council's website devoted to the Minerva controversy, the general director of the Iraq National Library and Archives, Saad Eskander, decried America's possession of the seized Iraqi documents and making them available to the US academic community.Footnote ⁶⁹ This essay deserves extended comment because it represents the farthest-reaching statement on these matters from an Iraqi cultural official and typifies the sentiments of other critics regarding the documents’ exploitation. In defining the documents as Iraq's cultural patrimony, it raises interesting questions about what ethical and legal rights the US may exercise over the records as the capturing state.

In his essay, Eskander denounced the Iraqi Perspectives Project and the CRRC as an “escalation of America's violation of international conventions on the safeguarding of cultural heritage of occupied territories.”Footnote ⁷⁰ He accused the Americans not only of tolerating the destruction and mass looting of Saddam Hussein's archives by Iraqi groups, but also of engaging in the looting “themselves.” The Americans also were guilty of aiding and abetting the plunder of millions of Baath Party records by the Iraqi Memory Foundation (IMF), a private Washington, DC-based nongovernmental organization that entered Iraq immediately after the invasion to save Saddam Hussein's legacy of atrocity. The Iraqi Perspectives Project, moreover, involved a fraudulent endeavor by the Pentagon, which could not be trusted to make the seized documents available to academic researchers without manipulating or destroying data to distort or hide evidence of “undesirable facts.” For Iraqis, he stated, the seizure and removal of millions of records comprised “undeniable cultural imperialism” which was “no different from the colonialists’ looting and smuggling of ancient artifacts of colonized peoples during the last two centuries.”Footnote ⁷¹

Although Eskander's emotive words accusing the US of pillaging cultural property were perhaps understandable given his role as guardian of Iraq's historical memory, they had little grounding in international law. Eskander argued poignantly for America to recognize the overriding cultural importance of the captured documents, but acknowledged their seizure for strategic military and occupation-related value. Despite his argument that the documents’ cultural importance superseded their value as military intelligence, the laws of war are wholly silent on this distinction. Drafted during an earlier imperial age, the 1907 Hague Convention considers captured public moveable property, including adversary state documents, for military advantage or occupation as spoils of war. In other words, the conventions and protocols of war do not acknowledge the cultural importance of captured state enemy records; their definition as cultural property and ultimate fate is left for postwar diplomacy.

Moreover, no conflict exists between the peacetime conventions on cultural property and the laws of armed conflict. The 1970 UNESCO Convention, for example, expressly mentions state archives as cultural property; the treaty aims to prohibit the illicit import or export of cultural materials. It considers illicit the export of cultural property under compulsion during times of occupation by a foreign power.Footnote ⁷² The treaty accords with the First Protocol to the 1954 Hague Convention, which prohibits the export of cultural property “from a territory occupied by it during an armed conflict.”Footnote ⁷³ Nonetheless, the US ratified the Convention in 1983 through the Convention on Cultural Property Implementation Act. This legislation implemented only Articles 7B and 9 in the US. While Article 7B prohibits the import of objects stolen from museums or similar institutions belonging to another signatory state to the Convention, Article 9 protects against the trade in pillaged archaeological or ethnographic materials.Footnote ⁷⁴ Neither article deals with captured wartime materials, nor does the Convention as a whole.

The UNIDROIT Convention, adopted in 1995, also aims to govern the trade and protection of cultural property; it was drafted to create a right of restitution regarding stolen property for individuals and contracting states.Footnote ⁷⁵ Like the UNESCO Convention, this treaty does not define seized wartime enemy state records as cultural property. Further, these conventions comprise no provisions that require the restitution of captured enemy records at the end of hostilities. Even Eskander, who condemned the United States as the “world's hungriest scavenger” of foreign documents and denounced the seizure of Iraqi records as “illegal,” observed that the Americans were uninterested in cultural records but “extremely interested in seizing current records of a political and security–military nature.”Footnote ⁷⁶

Nevertheless, Eskander and other critics also have repeatedly denounced the US for assisting the IMF in plundering and removing millions of pages of Baath Party documents to American soil. Advocating this same view, the Society of American Archivists and the Association of Canadian Archivists, representing a significant part of the international profession, issued a joint statement alleging that the IMF's actions may have constituted pillage under the 1907 Hague Convention.Footnote ⁷⁷ The case surrounding the IMF, a private entity, and the Baath Party documents is perhaps unprecedented in the history of US wartime document removals. The Baath Party documents were discovered in 2003 by a US soldier in a warren of rooms under the Baghdad headquarters of the Makhabarat (secret police). The documents carry particular sensitivity and importance in detailing Saddam Hussein's web of collaborators during his final years in power and the reach of Baath Party authority throughout Iraqi society.

The IMF, a registered US defense contractor led by the long-time Iraqi dissident Kanan Makiya, took possession of the files with the approval of the Coalition Provisional Authority (CPA). It is unclear why the CPA turned them over to the IMF rather than to the Pentagon for intelligence or to the CPA's Office of Human Rights and Transitional Justice, which aimed to gather evidence for the prosecution of Saddam Hussein and his senior leadership for human rights crimes. “If nothing else, this transaction indicated a serious disconnect between the CPA and the Pentagon regarding the disposition of adversary documents.”Footnote ⁷⁸ The IMF pursued other Iraqi records looted from Saddam Hussein's various bureaucracies and ministries of repression by individuals and domestic groups immediately after the fall of the Baath Party regime. Even as US forces seized the overwhelming number of documents, they failed to protect numerous sites with important government files from looting or destruction, resulting in the loss of vital information.

The motives behind the mass looting of Baath Party documents by Iraqis varied: retribution, blackmail, the search for missing relatives, or profit from their sale on a thriving black market. In many cases, the “documents eventually became liabilities” to their owners, and in fall 2004 numerous records were “dumped or otherwise disposed of.” Employing a network of friends and associates, many documents were “rescued and transported to the IMF's premises” in the heart of Baghdad's international Green Zone.Footnote ⁷⁹ In 2004, the New York-based human rights group Human Rights Watch (HRW) urged occupying authorities to secure the documents from looting as soon as possible before they could be misused for retaliatory violence and vengeance killings.Footnote ⁸⁰

Makiya imagined making the documents in his possession the centerpiece of a memorial center in the heart of Baghdad devoted to exposing Iraqis to their authoritarian past. Just days before the CPA transferred sovereignty to the Iraqi interim government on 30 June 2004, the IMF won the first of several US defense contracts to create a video archive of witness testimonies and collect records documenting the atrocities and crimes committed by the former Baathist regime of Iraq.Footnote ⁸¹ Makiya also won reauthorization of his custody of the Baath Party archive from the Iraqi president's office.Footnote ⁸² With the rise of Iraqi armed resistance against the presence of US forces and sectarian bloodletting, Makiya's hopes of creating a memorial center proved impossible; he convinced the Pentagon of their probable intelligence value in understanding the growing Iraqi Sunni insurgency, with the aim of orchestrating their removal to safer ground. In an unusual arrangement, the Pentagon transported the records to American soil, rather than to the media processing center in Qatar, for digitization and analysis before returning them to the IMF.

After the DIA returned the documents to the IMF's custody, the group sought to place them at Harvard University, but these discussions collapsed over concerns about their sensitivity, provenance, and international legal status. Makiya then struck a five-year deposit agreement with the Hoover Institution in 2008 to preserve and house the records. This deal was evidently made with the blessing of Iraqi government officials in the president's office, with whom Makiya leveraged his personal influence. Makiya also transferred to Hoover the work of his Harvard-based Iraq Research and Documentation Project, which included an incomplete set of digital files of the documents that were seized by the Kurdish peshmerga in the March 1991 uprising.Footnote ⁸³ The agreement governing the Baath Party documents sparked controversy leading to charges of pillage against Makiya and demands for the documents’ immediate return to Iraq. The State Department disavowed the US government's responsibility for the records, stating that their final disposition constituted a private matter among the Iraqi government, Hoover, and the IMF.Footnote ⁸⁴

In May 2010, a three-member Iraqi delegation, including Eskander, visited Hoover to discuss the return of the records. The parties agreed that the documents were Iraqi property and that their return was vital for national reconciliation, democratization, justice, and the rule of law in Iraq. The parties also agreed that Hoover would seek the advice and involvement of the State Department in future negotiations concerning their repatriation. In other words, it appears that Hoover will seek to follow the State Department's lead on matters of restitution.Footnote ⁸⁵

There is much to agree with in Eskander's online essay regarding his appeal for restoring Iraq's cultural and historical memory, albeit it is questionable whether the majority Shiite government would benevolently use the documents to foster national reconciliation and democracy. Nevertheless, Eskander's essay suggested that Iraq alone should control the documents’ intellectual content, as well as their access and research use. In his view, by making these materials available to sanctioned American researchers, the US stood guilty of grossly discriminating against the Iraqi people and violating their fundamental rights: their right to privacy, the right of victims, and the social sensitivities of Iraq. In other words, only Iraq should determine the records’ legitimate use according to its own sensibilities. The Iraqi Perspectives Project, he implied, involved little more than the exercise of imperial power by the “conqueror” over the “conquered.”Footnote ⁸⁶ A 2011 editorial in Al Ahram Weekly made the same point: “by what right,” it stated, “will U. S. academia obtain and research the Iraqi records without Iraq's consent and participation?”Footnote ⁸⁷

These words carry emotive appeal in light of an unpopular war that received widespread international condemnation. For critics, the war's erroneous premise of eliminating Saddam Hussein's phantom weapons of mass destruction provides the US little standing in continuing to possess the Saddam Hussein regime's documents. According to this rationale, they should be immediately returned to Baghdad to restore Iraq's historical patrimony and placed in the service of justice, national reconciliation, and democratization, perhaps a naive and dubious assumption given Iraq's bitter sectarian fissures and their probable malevolent misuse by the Iraqi government's new security services. Nonetheless, whether the war was a misadventure, as critics contend, is beside the point. The war happened, the materials were seized under the laws of armed conflict, and they now remain in American hands. The critical question is what is to become of them, an issue that now rests in the realm of diplomacy.

Moreover, the contention that Iraq should have sole rights over the documents’ intellectual content and research use is problematic. After all, it is no more feasible to argue that Saddam Hussein's documentary legacy is the exclusive property of the Iraqis than it is to contend that research of Hitler's historical record should be subject to the plain sensibilities of the German people. Saddam Hussein's various wars with Iran, Kuwait, and the United States and its Allies; regional support for terrorist organizations; overseas assassinations; and genocidal killings defined him as one of the twentieth century's most brutal dictators.Footnote ⁸⁸ Under Saddam Hussein's reign of power, Iraq's pursuit of international affairs became an indivisible part of world history. Moreover, the similarity with the post-World War II experience in the handling of captured Nazi and Japanese documents is apt. Before repatriating the vast trove of documents seized in World War II to Germany and Japan with the aim of normalizing relations, the US government screened, microfilmed, and declassified the majority of the documents. They were made available to scholars to animate study and exploration into the nature of totalitarian regimes, producing new specialists in Central European and Asian affairs who entered universities and government service. Most of the copied documents became freely available for research and analysis, and for the writing and understanding of world history. Few, if any, considered the intellectual contents of the records as the exclusive property of the former adversarial nations subject to their political, cultural, or social sensibilities about what constituted legitimate or ethical research.Footnote ⁸⁹

The concern about protecting the rights of innocents and other third parties named in the files, however, held considerable importance given Iraq's deeply fractured and sectarian society and the risk of retribution. The CRRC sought to address this problem by establishing access protocols that require academic scholars to obtain approval to use the database from their university institutional review boards, which serve to ensure confidentiality and ethical research involving human subjects. These screening procedures suggest that the intelligence community does not consider the documents as having fully matured into cultural property that can be freely released to the public. In other words, the documents exist in a kind of twilight, neither wartime intelligence needed by the Americans nor benign cultural property of an unreconciled sectarian society. Further, international law does not regulate when the national security value of captured enemy records has been exhausted and when some or all of such materials should be returned to the country of provenance, if at all.

Question of Restitution

In May 2010, the same three-member Iraqi delegation that visited Hoover officials met with government officials from the Departments of State and Defense in Washington to demand the return of the documents confiscated in the 2003 war. In asserting ownership over the seized records, the Iraqi delegation characterized their removal to America as “stolen.”Footnote ⁹⁰ American officials countered with the word “taken,” a word found in Article 53 of the 1907 Hague Convention permitting the wartime confiscation of enemy public moveable property for military advantage and occupation. Both the 1907 Hague Convention and the 1956 US field army manual allow such seized materials to be treated, without compensation, as the property of the capturing state, or spoils of war. In the end, the parties settled on the term “seized,”Footnote ⁹¹ a word meaning to take possession of by legal authority. This understanding may play to US advantage if it decides to withhold some or all of the records.

The timing of repatriating the Saddam Hussein regime's records to Iraq, if at all, remains an open question. Although the laws of war do not require their restitution, the United States has customarily restored seized materials after the end of conflicts based on its own political and security calculations. Following World War II, the US has willingly agreed to return document seizures primarily after defeating and ousting hostile regimes whose successor governments have become pro-American or US allies, and no longer pose a perceived national security threat. After hostilities involving Germany, Japan, Grenada, Panama, and Haiti, American officials also negotiated these returns as a diplomatic gesture to normalize relations.

Even so, it took years to repatriate the Nazi documents to the Federal Republic of Germany in a series of agreements between 1953 and 1968.Footnote ⁹² Notwithstanding these transfer agreements, the US initially withheld documents that glorified the Nazi regime, that related to German occupation of other states, or whose release could endanger national security.Footnote ⁹³ Other documents involving personnel and membership of the Nazi Party were withheld under American control at the Berlin Documents Center for use in war crimes and de-Nazification trials until they were restored to a reunited Germany in 1994.Footnote ⁹⁴ Moreover, although the US repatriated stores of Nazi looted documents to the Soviet Union after World War II, even as it was rapidly becoming a Cold War adversary, other records relating to the Communist Party archive of Smolensk Oblast were withheld until 2002. The Smolensk archive proved invaluable in revealing the inner workings of the Soviet state in the 1920s and 1930s.Footnote ⁹⁵ The US also withheld Iraqi records seized in both the First Gulf War in 1991 and the Kurdish uprising in northern Iraq immediately afterward; the two countries remained in a state of hostilities over the no-fly zone until the 2003 invasion. The Pentagon digitized both sets of documents before turning them over to the National Archives and Records Administration. The National Archives destroyed the captured documents from the First Gulf War because of mold contamination. In other words, they were treated as spoils of war and the property of the United States, not as the historical or cultural patrimony of Iraq.Footnote ⁹⁶

A different understanding governed the eighteen tons of secret-police documents seized by the Kurdish peshmerga. After their capture in the March 1991 uprising, the Kurds allowed the Pentagon to remove them to American soil for analysis and safekeeping under the understanding that they remained Kurdish property. The DIA digitized the documents, while providing HRW exclusive access to review the files for a possible genocide case against Saddam Hussein and his senior leadership. At the same time, Saddam Hussein disowned the documents as mass forgeries, in effect relinquishing them to the Kurds. Following their digitization, the DIA transferred the documents to the National Archives. In 1997, they were then deposited at University of Colorado at Boulder's human rights archives, where they remained until the State Department assumed custody of them for use in the trials of Saddam Hussein for the Anfal genocide in Iraqi Kurdistan in the late 1980s. It is presumed that the documents remain in the possession of the US, possibly at the media processing center at Qatar.

As this case demonstrates, there is nothing in international law that prohibits an arrangement whereby a rebel faction seizes government security documents in hostilities and loans them for intelligence to a third-party country, which also exists in a state of armed conflict with the same originating government. Article I of Geneva Additional Protcol II, governing noninternational conflicts, does not define government moveable property deemed a military imperative as protected private or cultural property.Footnote ⁹⁷ By extension, just as international combatants can seize enemy documents for military advantage, so, it seems, can noninternational combatants. The laws of armed conflict are silent on document seizures by internal dissident forces during hostilities. Presumably, such actions are covered under domestic law. Nonetheless, with no international legal constraints, the US exploited these materials for intelligence, as it has with the captured Iraqi documents from the 2003 war.

The US and Iraq are now involved in diplomatic negotiations concerning the repatriation of the Saddam Hussein regime's documents taken in the 2003 war. In September 2012, the US State Department issued a press release regarding a joint statement of the US–Iraq Political and Diplomatic Joint Coordination Committee. The joint statement reported on a meeting in Baghdad, cochaired by Iraqi foreign minister Hoshyar Zebari and US assistant secretary of state for near eastern affairs Ambassador Elizabeth Jones, in which the governments of Iraq and the US reaffirmed their strategic partnership. Among other matters, the press release noted that the “United States and Iraq discussed the ongoing process of repatriating archives and documents which are part of the patrimony of the Iraqi people.”Footnote ⁹⁸ No further details were provided on the nature of those discussions, but as one researcher observed, the use of the terms “archives and documents” suggested that the negotiations concerned both the millions of pages of Iraqi documents seized by US forces and the contested Iraqi Jewish archives.Footnote ⁹⁹ The latter body of materials, comprising primarily religious texts looted by the Iraqi secret police, some dating back centuries, was discovered in the watery mire in the basement of the Mukhabarat's headquarters in Baghdad soon after the invasion, and taken to the US for conservation treatment. The Iraqi Jewish archive has since become contested cultural property; while Iraqi officials demand its return to Iraq, Jewish organizations and others argue that it constitutes looted cultural property of Iraqi Jews who were dispossessed and expelled from Iraq and belongs to the Iraqi Jewish diaspora.

It is unclear whether the US will consider humanitarian factors when repatriating the materials given Iraq's deep sectarian divisions. HRW's 2004 observation regarding the documents’ sensitivity and their possible malevolent misuse for retribution and vengeance killings remains relevant. The increasing threat of political disintegration and the rising tide of violence argue against restoring the Saddam Hussein regime's documents to the majority Shiite-led government at this time. In 2005, Hassam Mneimneh, one of the IMF's directors, commented on the variety of approaches that post-authoritarian countries have taken in confronting the secret-police files of predecessor regimes. South Africa's Truth and Reconciliation Commission established a forgiving model in which victim and perpetrator faced each other. The Lebanese model represented another example closer to Iraq. “A traumatic civil war ends, a page is turned as if nothing has actually happened – this is the model almost of denial.”Footnote ¹⁰⁰ Mneimneh had once hoped that Iraq would find its own level of comfort in confronting its brutal authoritarian past with openness. But as one former victim of Saddam Hussein's regime pointed out, “This is not Germany. Iraq is not ready to have decades of betrayal revealed all at once; there would be killing in the streets.”Footnote ¹⁰¹

It also may be instructive to look at how many post-authoritarian countries in Eastern Europe have addressed their archives of repression. In many cases, efforts to pass lustration laws and open up secret-police files to citizens with the aim of confronting the past and advancing reconciliation have been mixed or fared poorly. The Czechs passed a lustration law disqualifying former collaborators from government service, but it also ignited repeated political scandals stemming from unsubstantiated charges. By the time the Czech government set up a limited system allowing citizens to see their secret-police files, much of the documentation had been destroyed. The Slovakians avoided passing a lustration law altogether, fearing political turmoil. In Hungary, the communist-era secret-police files had been widely purged. The government also imposed strict limits on access, effectively shielding the identities of past informers. Like other post-communist governments in Eastern Europe, Hungary evidently feared opening up a Pandora's box, politicizing both the past and present.Footnote ¹⁰²

The Polish experience involved one of the more interesting cases. Communist functionaries kept control of the secret-service files long enough to destroy fully half of them and corrupt many others as a reliable source. Following repeated failures to adopt a lustration law, the Polish government established a lustration court in 1997 to address the guilt or innocence of the communist era. Few judges wanted to serve on the court and render decisions affecting the careers of government officials. In 1998, the Polish parliament created an Institute for National Memory, but limited citizens’ access to the secret files of the former regime. Moreover, in 2006, Poland's leaders, Lech and Jarosław Kaczyński, the identical twins who served respectively as President and prime minister, pushed through a lustration law to disclose millions of volumes of communist-era secret-police files to vanquish “the post-communist monster” that the brothers claimed still haunted Poland. The law set off fears of a massive witch hunt in calling for compulsory vetting of diplomats, local officials, board members of state-owned companies, media bosses, headmasters, lawyers, and journalists – a list that threatened to cover hundreds of thousands among Poland's 38 million population. In many of these cases, newly democratic governments abandoned the German model of allowing citizens to view their secret-police files in favor of imposing renewed secrecy or limited access to fend off bitter controversy and social and political instability.Footnote ¹⁰³

If these experiences are any indication, they inspire little confidence in how the Saddam Hussein regime's archives would be handled by the Shiite majority government, if returned. Few other post-authoritarian governments have experienced the depths of Iraqi sectarianism. At the nadir of Iraq's sectarian war during the American occupation, perhaps the biggest political sin of most long-time observers of Baath Party abuses involved grossly underestimating the deleterious consequences of thirty years of extreme dictatorship on reconstruction, identity formation, and nation building. Many in the Iraqi exile community and elsewhere initially underestimated the tremendous sectarianism that would ravage a supposedly liberated Iraq. Without social and political reconciliation among ethnic and religious groups, it is highly questionable whether Iraq can become a functioning democracy.

In May 2004, before Iraq's descent into sectarian bloodletting, the International Center for Transitional Justice and the University of California at Berkeley's Human Rights Center warned in a joint study that Iraq faced enormous hurdles in overcoming a legacy of ruthless authoritarianism, political violence, and massive human rights abuses, in addition to the occupation by American and coalition forces. Fostering social and political reconstruction among Iraq's various ethnic, religious, and political groups posed the most difficult challenge; it would require reforming Iraq's intelligence, security, military, and police forces in conformity with international human rights standards and implementing institutions and procedures to prevent human rights abuses from recurring. Most important for social reconstruction was the imperative of instituting legal justice, security, and the rule of law. Given the country's shared experience of a long history of human rights violations and extreme political violence, the challenges of devising legal and effective processes for confronting the past were considered immense.Footnote ¹⁰⁴

A decade following the 2003 invasion, Iraq has made little progress in bridging its differences and reforming its institutions to ensure human rights and the rule of law. In February 2012, the Carnegie Endowment for International Peace issued a paper forewarning that the “tenuous political agreement among parties and factions reached at the end of 2010 has collapsed.” It cautioned that the ostensible government of national unity had ceased functioning, that the central government was under increasing pressure from the provinces that wanted autonomy comparable to Kurdistan's, and that unless a new political agreement was reached soon, “Iraq may plunge into civil war or split apart.”Footnote ¹⁰⁵

Indeed, the American occupation failed to infuse Iraq with a new set of political rules that reflected either the dominant culture or the power relations among varying political forces. The US held the country together primarily through force of arms, but this failed to forge a lasting social contract among Iraqis of differing sectarian faiths.Footnote ¹⁰⁶ The Kurds in northern Iraq had aspired to their own country ever since the fall of the Ottoman Empire and the creation of Arab Iraq in which they were relegated to minority status. Periodic rebellions first under British rule and then under independent Iraq reflected a persistent and profound sense of grievance. Uprisings in the 1960s resulted in the 1970 establishment of a Kurdish autonomous zone in northern Iraq. Saddam Hussein's forces devastated the Kurdistan region in the 1980s with massive killings, forcing many others into exile. Following the first Gulf War, the US and the UK maintained a protective no-fly zone over Iraqi Kurdistan, enabling the Kurds to govern themselves. The 2005 Iraqi constitution drafted under American supervision codified, if not expanded, Kurdistan's autonomy.

After the US occupation, there have been increasing tensions bordering on armed conflict over land, oil, and political autonomy between the Kurds and Nouri al Maliki's Shiite majority government, which has sought to centralize power and marginalize political adversaries.Footnote ¹⁰⁷ Maliki owes his position to a fragile coalition of Shiite and Kurdish parties stitched together after he failed to win a ruling majority in 2010. But this coalition largely arrayed against the Sunnis has been badly fraying. Bitter disputes over the contested strategic city of Kirkuk, which the Kurds claim as part of their territory, and newly discovered oil in Iraqi Kurdistan also have fueled heightened tensions with Baghdad. The Kurds have nothing but mistrust for the central government and would rather be free of Iraq altogether. Kurdish leaders have warned that they might seek full independence if disputes over oil revenues and power sharing are not resolved.

In Iraq's western Anbar province, Sunni anger over thousands of arrests by Iraqi security forces and government neglect has ignited mass protests that pose perhaps the biggest challenge to Maliki's government since Iraq's 2006–7 sectarian war. The unrest in the majority Sunni provinces has stemmed partly from the belief that Maliki's elite security units are indiscriminately arresting and torturing Sunnis under the guise of counterterrorism operations. Moreover, in Iraq suspects can be arrested on information provided by unnamed informants and sentenced to death on the basis of a confession, which human rights groups say is commonly obtained through torture.Footnote ¹⁰⁸ Indeed, a decade after the US-led forces toppled Saddam Hussein's Baathist regime, some of his former associates and followers have banded together with other Sunni groups to launch the most substantial bid for Sunni power since Saddam Hussein's demise. On a larger scale, the mass protests aim to overturn the country's post-Saddam Hussein power-sharing arrangement, which Sunnis largely see as dominated by Shiites under the sway of Iran, Iraq's Shiite-majority neighbor. The uprising in Syria where the Sunni majority is battling a Shiite-affiliated regime allied to Iran has inspired the Iraqi Sunni protest movement. Although the protests have largely been peaceful, they have increasingly drawn involvement from a variety of Sunni insurgent groups, as well as support from regional Sunni powers and Iraqi Kurds, who also seek to weaken central authority.Footnote ¹⁰⁹ Maliki's government, however, has begun to crack down on the protests. On 23 April 2013, a raid by the Iraqi military on the town of Hawija in Sunni majority Kirkuk province resulted in the deaths of forty-four Sunni protesters.Footnote ¹¹⁰

Beyond deep and abiding divisions among ethnic, sectarian, political, and armed groups, Iraq is beset by the absence of independent institutions; they remain beholden to Maliki. Iraq has yet to find its way in transforming fractious pluralism into democracy as Maliki seeks to “decrease this pluralism by enhancing his own power.”Footnote ¹¹¹ The Federal Supreme Court has demonstrated repeatedly that its interpretive decisions of the poorly drafted federal constitution favor Maliki's positions. In other words, the judicial system has become subservient to Maliki's political aims. Maliki's detractors see him as another Arab dictator-in-the-making; he has shown a proclivity for subverting the constitution when it suits him, using the de-Baathification process for sectarian purposes with little opposition from the courts, unleashing the security forces to make arbitrary arrests, allowing the torture of detainees, and reneging on political compromises that forged a government of national unity.Footnote ¹¹²

Iraq's bitter ethnic and sectarian fault lines, Maliki's increasing authoritarianism, and the country's political disintegration and volatility bordering on armed conflict pose substantial risks for repatriating most of the former regime's captured records. Although the US may follow diplomatic expediency in ridding itself of an inconvenient foreign-policy matter and budgetary expense in holding the documents, American officials would have blood on their hands if the documents were repatriated and then used to foster sectarian revenge killings, a substantial possibility. As in the aftermath of previous conflicts, the US will determine when to return most of the documents based on its own diplomatic and national security interests. Still, American diplomatic authorities may proceed cautiously. Even though Iraq no longer is perceived as an adversary and is more pro-American in its orientation than was the Saddam Hussein regime, these developments may not be enough to fulfill the customary criteria for repatriating the materials.

Several years after their seizure, it remains unclear when US officials may consider any of the tens of millions of records to have transitioned from wartime intelligence to Iraq's historical and cultural patrimony that can be repatriated. It is doubtful that the US will return documents chronicling Saddam Hussein's nuclear weapons program and possibly other materials relating to sensitive geostrategic or national security concerns. Other records swept up in the war regarding private Iraqi citizens, including, for example, property records, marriage licenses, birth certificates, as well as historical documents and similar cultural heritage materials with no intelligence value, could be returned immediately. Many documents, however, contain the names of former Baathist informants, security agents, and other material that would place these people, as well as innocents and third parties, at risk. What no longer has value for US intelligence may have malevolent utility for Iraq's new security apparatus against the central government's perceived sectarian and political enemies. In other words, rather than serving as a means of national reconciliation and unity, the records could foster increased sectarianism and retribution. If there is to be a confrontation between human rights and repatriation, human rights should prevail until the documents no longer pose harm.

Although the United States is not a signatory to many international human rights agreements, it has nevertheless ratified both the Universal Declaration of Human Rights and several seminal human rights treaties that aim to protect the security of the person. There is seemingly an inherent conflict between American obligations under these treaties and its own societal values and the repatriation of politically charged documents that may result in the killings of former Baathists and third-party innocents. The Universal Declaration of Human Rights proclaims the fundamental rights of individuals “to life, liberty, and the security of the person,” albeit it is not a legally binding document.Footnote ¹¹³ The 1948 Convention on the Prevention and Punishment of the Crime of Genocide calls for the punishment of those found guilty of genocidal crimes, whether they are constitutional leaders, public officials, or private citizens.Footnote ¹¹⁴ Moreover, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires governments to take effective measures to prevent torture within their borders.Footnote ¹¹⁵ While the Convention against Torture may apply only within a signatory country's own borders, it would be cruelly ironic for the US, which ratified this treaty, to repatriate sensitive documents to another country that may use them to foster torture against its own people. In other words, these declarations and conventions ratified by the US, together with the American Bill of Rights, embody fundamental humanitarian principles that aim to protect the individual against state violence. Returning these documents to a fracturing and unreconciled Iraq, knowing that they may be reactivated against Maliki's sectarian enemies, would make the US potentially complicit in human rights crimes and further Iraq's social and political disintegration. As such, American authorities should return such sensitive documents only when and if Iraq makes significant progress in reconciling its bitter sectarian differences.