NEW YORK – The U.S. military says it will turn over an award-winning Associated Press photographer to an Iraqi court, accusing him of having links to terrorist groups.
The military is refusing to disclose what evidence or accusations would be presented, and an AP attorney on Monday strongly protested the decision, calling the U.S. military plans a "sham of due process." The journalist, Bilal Hussein, has already been imprisoned without charges for more than 19 months.
In Washington, Pentagon press secretary Geoff Morrell explained the decision to bring charges now by saying "new evidence has come to light" about Hussein, but said the information would remain in government hands until the formal complaint is filed with Iraqi authorities.
Morrell asserted the military has "convincing and irrefutable evidence that Bilal Hussein is a threat to stability and security in Iraq as a link to insurgent activity" and called Hussein "a terrorist operative who infiltrated the AP."
AP Associate General Counsel Dave Tomlin rejected the claim: "That's what the military has been saying for 19 months, but whenever we ask to see what's so convincing we get back something that isn't convincing at all."
The case has drawn attention from press groups as another example of the complications for Iraqis chronicling the war in their homeland — including death squads that target local journalists working for Western media and apparent scrutiny from U.S. intelligence agents.
A public affairs officer notified the AP on Sunday that the military intends to submit a written complaint against Hussein that would bring the case into the Iraqi justice system as early as Nov. 29. Under Iraqi codes, an investigative magistrate will decide whether there are grounds to try Hussein, 36, who was seized in the western Iraqi city of Ramadi on April 12, 2006.
Tomlin said the defense for Hussein is being forced to work "totally in the dark."
The military has not yet defined the specific charges against Hussein. Previously, the military has pointed to a range of suspicions that attempt to link him to insurgent activity.
The AP also contends it has been blocked by the military from mounting a comprehensive defense for Hussein, who was part of the AP's Pulitzer Prize-winning photo team in 2005.
Soon after Hussein was taken into custody, the AP appealed to the U.S. military either to release him or bring the case to trial — saying there was no evidence to support his detention. However, Tomlin said that the military is now attempting to build a case based on "stale" evidence and discredited testimony. He also noted that the U.S. military investigators who initially handled the case have left the country.
The AP says various accusations were floated unofficially against Hussein and then apparently withdrawn with little explanation.
Tomlin said the AP has faced chronic difficulties in meeting Hussein at the Camp Cropper detention facility in Baghdad and that its own intensive investigations of the case — conducted by a former federal prosecutor, Paul Gardephe — have found no support for allegations he was anything other than a working journalist in a war zone.
"While we are hopeful that there could be some resolution to Bilal Hussein's long detention, we have grave concerns that his rights under the law continue to be ignored and even abused," said AP President and CEO Tom Curley.
"The steps the U.S. military is now taking continue to deny Bilal his right to due process and, in turn, may deny him a chance at a fair trial. The treatment of Bilal represents a miscarriage of the very justice and rule of law that the United States is claiming to help Iraq achieve. At this point, we believe the correct recourse is the immediate release of Bilal," Curley added.
Hussein, a native of Fallujah and a member of a prominent clan in the western province of Anbar, began work for the AP in the summer of 2004 as the anti-U.S. insurgency was gaining ground.
On the morning of April 12, 2006, Hussein was out buying bread for breakfast when he heard a blast on a nearby street in Ramadi, according to the AP investigation. He dashed home and allowed several strangers to follow — as was customary to offer shelter during unrest in the city. Marines later arrived and used Bilal's apartment as a temporary observation post.
Hussein told the AP he was later taken into custody by the Marines who also confiscated equipment including a laptop and satellite phone. The guests he invited into his apartment amid the chaos were also detained.
On Monday, Morrell said two guests in the apartment that day were "suspected insurgents" and that one of them later was convicted in a court of having a phony ID. It was unclear whether he remained in custody or was released.
Calls for Hussein's freedom have been backed by groups such as the Committee to Protect Journalists.
Tomlin said it remains unclear what accusations, evidence and possible witnesses will be presented by military prosecutors in Baghdad.
"They are telling us nothing. ... We are operating totally in the dark," said Tomlin, who added that the military's unfair handling of the case is "playing with a man's future and maybe his life."
Although it's unclear what specific allegations may be presented against Hussein, convictions linked to aiding militants in Iraq could bring the death penalty, said Tomlin.
Pentagon spokesman Bryan Whitman said Tuesday there was a "possibility" that Hussein could continue to be held if the Iraqi court decides not to try him or if he is found not guilty.
"Provisions allow for somebody to be held as a security detainee if it's determined that they continue to be a threat to coalition forces or to the Iraqi people," Whitman said.
U.S. military officials in Iraq did not immediately respond to AP questions about what precise accusations are planned against Hussein.
Previously, the military has outlined a host of possible lines of investigation, including claims that Hussein offered to provide false identification to a sniper seeking to evade U.S.-led forces and that Hussein took photographs that were synchronized with insurgent blasts.
The AP inquiry found no support for either of those claims. The bulk of the photographs Hussein provided the AP were not about insurgent activity; he detailed both the aftermath of attacks and the daily lives of Iraqis in the war zone. There was no evidence that any images were coordinated with the insurgents or showed the instant of an attack.
Tomlin also questioned the U.S. military claims that Hussein's fate rests solely with Iraqi justice. Noting that Hussein has been in the sole custody and control of the U.S. military, he said it's up to military prosecutors to lay out the allegations and "it's impossible that they don't have a specific set of charges drawn up."
Gardephe, now a New York-based attorney, said the AP has offered evidence to counter the allegations so far raised by the military. But, he noted, it's possible the military could introduce new charges at the hearing that could include classified material.
"This makes it impossible to put together a defense," said Gardephe, who is leading the defense team and plans to arrive in Baghdad next week. "At the moment, it looks like we can do little more than show up ... and try to put together a defense during the proceedings."
One option, he said, is to contend that the Pentagon's handling of Hussein violated Iraqi legal tenets brought in by Washington after the fall of Saddam Hussein in 2003. Among the possible challenges: AP claims that Hussein was interrogated at Camp Cropper this year without legal counsel.
Hussein is one of the highest-profile Iraqi journalists in U.S. custody.
In April 2006 — just days before Hussein was detained — an Iraqi cameraman working for CBS News was acquitted of insurgent activity. Abdul Ameer Younis Hussein was held for about a year after being detained while filming the aftermath of a bombing in the northern city of Mosul.
Tomlin, however, said that freedom for Bilal Hussein, who is not related to the cameraman working for CBS, isn't guaranteed even if the judge rejects the eventual U.S. charges. The military can indefinitely hold suspects considered security risks in Iraq.
"Even if he comes out the other side with an acquittal — as we certainly hope and trust that he will — there is no guarantee that he won't go right back into detention as a security risk."
Shihab al-Tamimi, the head of the Iraqi Journalists Union, told the AP: "We reject making accusations by any group against journalists who are trying to convey the truth, especially if it is the occupation forces."
Falah al-Khatab, a journalist working for the state-run Al-Sabah newspaper, said it was not the first time that U.S. forces "have suspected and accused journalists who were only carrying a camera in a hot area or trying to cover the war."