Bilal Hussein's Day in Court

Lieutenant Colonel Robert L. Bateman is currently stationed in Washington, D.C. He was a Military Fellow at the Center for Strategic and International Studies (CSIS) and has authored two books: "Digital War, A View from the Front Lines" [1] (Presidio: 1999) and "No Gun Ri, A Military History of the Korean War Incident" [2] (Stackpole, 2002). These opinions are his own and do not reflect those of the U.S. Government or the Armed Forces.

This is a column that requires immediate and complete disclosure: I have a history with the Associated Press. 

In 1999, the AP published a story about events that took place a half century earlier at a place called No Gun Ri.  That is a small town in South Korea, and the events took place during the Korean War.  I was, at the time the story came out, a historian on the faculty at West Point.  After doing some archival checking of my own, I contacted the lead AP reporter and informed him that his star witness could not possibly have done the things the AP reported him to have done in Korea. I told him that I had uncovered evidence (in the very same archival material used by the AP for its reporting) that its  witness was a complete fake.  The AP blew me off.  The next week, that AP team won the Pulitzer for their story.  So I passed what I had to reporter Joe Galloway, then at US News and World Report, and eventually wrote my own book. (Strangely, the AP tried to censor this book, making me perhaps the only soldier ever to have journalists attempt to silence his voice [3]. Go figure.) The AP’s star witness? He went to prison. It seems that the AP was not the only ones he had fooled.  He had been collecting a paycheck for 100% disability for Post Traumatic Stress Disorder for nigh on 15 years at the time I helped expose him as a fraud.

Then in December 2006 I raised some serious questions about AP’s sourcing for stories in Baghdad. It seems that one police officer, about the equivalent to a local desk sergeant in U.S. cop terms, was providing quotes and “eyewitness” accounts for events occurring all over Baghdad, but only when Sunnis were the victims. I threw a yellow flag on that one, too, based in no small part on my own life in Iraq, working with the Iraqi police, in Baghdad. I published my critique on the admittedly liberal/left-leaning news watchdog site Media Matters for America [4] (where, in a bizarre twist, it apparently made me the temporary darling of the Right side of the online world.)

So, there you go. The AP and I have, you might say, a significant and developing history. It is a wee bit lopsided – one military historian versus the largest news organization in human history, but life is strange that way.

In any event, this column has nothing to do with those previous brouhahas.  This column is about Bilal Hussein.

Hussein is, apparently, a man with an eye. He captures images, and by all accounts he does this quite well.  He does so well enough, in fact, that the images he took made him a part of the AP team that won a Pulitzer Prize for news photography in 2005.  Hussein is Iraqi. He is a native of the city of Fallujah, which is in Anbar province. He was assigned by the AP to the Anbar city of Ramadi.  In April 2006, Hussein was captured by the U.S. military. He was taken into custody in the company of two men who were members of an insurgency group (or at least believed to be members of an insurgency group). These men were, at the time of their arrest, having breakfast with Hussein. This is all that I really know about Bilal Hussein. Everything else seems, at this point, to be a case of he-said-she-said.

On the one side, there is a consortium of right-wing bloggers and commentators who have had it out for Hussein even before he was part of the Pulitzer-winning team. “Conspiracy theorists” would, in some cases, be too gentle a term for the people who have trotted out some of the more extreme ideas on this issue. At their worst, some of these people are just plain nuts. Even at their best, few exhibit any real working understanding of how journalism works, or the ethics of journalism as they are commonly accepted.

Oh, and at least to some degree, the military officers who have determined that Bilal Hussein is not who he represents himself to be (an innocent journalist just trying to put food on the table in a tough environment) seem to come down generally on this side of the argument. That point should be clear because the U.S. military has held Hussein for more than a year and a half now.  However, I would note that my own experiences within the military these past 18 years suggest to me that the overwhelming majority of my peers are not, in fact, conspiracy theory inclined. Occasionally we may be accused of paranoia, but in some environments in which my profession operates, this is a healthy and appropriate response. You are not paranoid, for example, if there really are thousands upon thousands of people who are trying to kill you. Living in Iraq reminds you of the truthiness of this observation.

On the other side is the world’s largest news organization, a body that itself seems somewhat conspiracy theory inclined. This is not a positive development.

Standing at the head of the AP today is Tom Curley.  In 2006, several months after Hussein’s arrest, Curley’s frustration spilled over in an editorial in which he wrote [5] of Hussein, “He is no longer free to circulate in his native Fallujah or in Ramadi, taking photographs that coalition commanders would prefer not to see published…” and, “Both official and unofficial parties on every side of a conflict try to discredit or silence news they don't like. That is certainly the case in Iraq, where journalists are routinely harassed, defamed, beaten and kidnapped. At last count, 80 had been killed.” 

Now, since the rest of that Washington Post column was all about how Hussein had been arrested by the U.S. military in Iraq, the only connection a reader can logically make (although it is not explicitly stated) is that it is the U.S. military that has “routinely” been beating and kidnapping, journalists and by implication as well, deliberately killed 80 reporters or others involved in journalism. That, folks, is not true.

The U.S. military has not defamed, beaten, kidnapped or killed any journalists. At least, it has not intentionally killed any because they were journalists. (Several Western journalists have, in fact, died as a result of U.S. weapons fire, but not because they were journalists. The same applies for non-Western journalists. All tolled, according to the Committee to Protect Journalists, some 124 journalists have died in Iraq, 16 of whom were killed by U.S.-fired weapons or in cross-fire between coalition forces and insurgents. See it all here [6].)

I thought I should mention that point since nobody in the U.S. government responded to Curley’s comments at that time, at least so far as I could determine.

Curley ended his essay this way: “If Bilal has done something wrong, the Iraqi courts stand ready to try him. Iraqi authorities have asked more than once that he and other Iraqi citizens in prolonged U.S. military custody be turned over to them for due process. We ask the same.”

In mid-November of this year, the U.S. government announced that [7] it planned to do just that.  Hussein is to be turned over to the Iraqi legal system. Curley, meanwhile, appears to have changed his mind. The Iraqi justice system, in his eyes, is no longer sufficient.  But instead of working with the Iraqi government and judicial system, the AP has hired a former prosecutor named Paul Gardephe to represent Hussein. Now here is the curious part. Gardephe apparently does not speak Arabic. He does not read or write Arabic. He has never represented a client before an Iraqi court, or before any Arabic court. He has no legal training in the Iraqi judicial process, and it will doubtless require a waiver for him to practice law in Iraq before Iraqi judges. But what he does have is this (from Mr. Gardephe’s bio on his New York City law firm’s Web site [8]):

“Paul Gardephe chairs the firm’s Litigation Department, White Collar Defense and Investigations group and is co-Chair of the firm's Subprime Mortgage Practice Team.  His practice includes the defense of white collar criminal prosecutions and grand jury investigations, internal corporate investigations, and related regulatory proceedings.  He also co-chairs the firm’s Appellate Practice group and has extensive appellate practice credentials.  He often represents the media, particularly in libel and related matters.”

Say what? Are they serious? Bilal Hussein is facing an Iraqi investigative judge, and the AP hires an American lawyer? (The Iraqi system uses a two-tier judge system. The first tier consists of “investigative judges,” which the Iraqi system uses in much the same way that we use grand juries … which is just the tip of the iceberg as far as differences between the two systems go and also partially explains why the specific charges have not been enunciated. Anybody with 30 minutes experience with the Iraqi legal system knows this.)

The AP’s man faces charges with real, serious, consequences, and the AP hires an attorney whose primary qualification seems to be public relations spin for white-collar crimes? On what planet does that make sense? What was Curley thinking when he hired a NYC firm, and a lawyer with no Arabic language skills, no experience in military issues (let alone war zones) or the laws of land warfare, and no legal training in the country in which their employee faces trial?  The only thing that occurs to me is that Curley somehow believes that American public opinion is what really counts in the Iraqi justice system. In short, Curley’s behavior (and that of the AP) suggests that his assumption is that it is domestic U.S. public relations that really matter in Iraqi courtrooms. Why else post its lawyer’s 46-page, English-language-only message on its Web site? There is no Arabic version; there are no Iraqi lawyers cited. The sum is the apparent product of a single New York City lawyer.

Yes, I understand, Curley himself does not speak Arabic. I get that he would personally probably be more comfortable with a lawyer from his own socio-economic and cultural circles, in this case those of New York City journalism circles. (Mr. Gardephe is apparently also renown for representing news organizations in libel suits.)  I grok the emotional load Mr. Curley has in his desire to defend one of those he believes to be a part of his tribe. But none of that explains why he hired a libel lawyer from New York City to defend an Iraqi citizen in a criminal case in Iraq under Iraqi law. In his essay in last Saturday’s Washington Post, Curley used the singular when referring to Hussein’s legal team. He said “he” and “his lawyer” and made no suggestion that the AP has even attempted to create an Iraqi legal team to defend its Iraqi client in an Iraqi court. News organizations at least theoretically are pretty precise with language. Using the singular in reference to Bilal Hussein’s lawyer implies that there is only one lawyer.

Viewed in that light, Curley’s words do seem to dovetail nicely with his actions. In late November, in response to the announcement that Hussein was being turned over to the Iraqi legal system (remember, again, that Hussein is an Iraqi citizen), Curley appealed to the conspiracy minded.  In the complete absence of evidence, and in defiance of common sense, he wrote [7]:

“We believe Bilal's crime was taking photographs the U.S. government did not want its citizens to see. That he was part of a team of AP photographers who had just won a Pulitzer Prize for work in Iraq may have made Bilal even more of a marked man.”

Let me see if I get this straight.

Curley actually believes that Hussein was deliberately singled out and captured by some 19-year-old privates and their 24-year-old sergeant, none of whom is likely to have more than a high school diploma or equivalency document, who were reacting to (or targeted by) a roadside bomb that went off near Hussein’s place, was because these men somehow knew about the Pulitzer Prize?* Or, alternatively, that from their dusty FOB in the middle of Iraq, they keep track of photographic bylines of photos that appear in the United States? And your source for this is … what?

Sorry, folks, but only in the most insulated New York City bubble could that possibly pass the “makes sense” test. But then the AP’s hiring of a NYC lawyer known best for white-collar crimes and media libel law would tend to confirm the thesis that at the top they are, indeed, living in an insulated cocoon.

Mr. Curley, I am afraid I have bad news for you. Most of our soldiers, our privates, corporals, and sergeants, to say nothing of our lieutenants or captains, do not have a clue what the Pulitzer Prize is, what it means, or who has won the blasted thing. Frankly, damned few of our majors or lieutenant colonels know anything about this,  either. For most of my peers, April is just April. It is not “Pulitzer season.” They are not on pins and needles waiting to see who of the nominees have grasped the brass ring of journalism. Nor do they obsessively check photo caption credits to see who has the byline. You might be better served by Occam’s Razor [9] than by conspiracy theory.  

The U.S. government, and our military, screws up. Sometime by an excess of zeal, sometimes through a dearth of the same. It may well prove that the Iraqi courts determine that Mr. Hussein is, in fact, innocent of the charges. I am not myself aware of all of the evidence that the government plans to use in his trial, though I have read your NYC lawyer’s analysis of the charges and accusations [10]. But I do believe that it might behoove you to perhaps check your own biases. Remember, nobody believed that Time magazine reporter Pham Xuan An was anything but a dedicated local Saigon reporter either [11]. **

You can write to Bob Bateman at R_Bateman_LTC@hotmail.com [12]. He welcomes all, pro or con. This, he believes, is the foundation for discourse.

* I do not know the actual ages or ranks of the soldiers involved in Hussein’s capture. These are just averages for the typical infantry squad.

** For those unaware, the man now known as Major General Pham Xuan An was, in fact, a North Vietnamese spy during the entire period when he was also in the pay as a stringer and then full-time reporter for Time magazine, during the Vietnam War. He was a colonel in the North Vietnamese intelligence services. 
 
You can find additional stories about Bilal Hussein here [13], and here [14]. Also, you might be interested in this tidbit of news [15].

Click here for more columns by Robert Bateman. [16]