Iraqi courts to decide fate of America's detainees

Within days the US military will begin transferring 1,500 detainees – many of them suspected bombmakers, insurgents, and criminals – every month for the next year to Iraqi authorities. Iraqi courts will then decide who should be freed and who should stay in jail.

Those decisions will have a profound impact on the future of Iraq and the fragile state of security here. While freeing many of the 15,100 detainees who remain in US custody is key to national reconciliation, it could also feed an insurgency that has largely been defeated.

What's more, while Iraqi courts have made great strides, some international observers question whether the system that is notorious for torturing prisoners is ready for a massive influx of detainees.

"This is a complicated thing to do in the most sophisticated of societies, and I think the Iraqis will get there at some point, but I'm not sure that they're there now," says Judith Yaphe, a senior fellow at the National Defense University in Washington. "On the whole I would think that it's better to let the Iraqis deal with this, but you can't let up your guard."

The detainees must be handed over beginning Feb. 1 as part of the Status of Forces Agreement (SOFA) that went into effect Jan. 1 and dictates the terms of the US military presence in Iraq. The Americans have evaluated each prisoner in terms of their potential threat in an effort to guide their decisionmaking.

Of the 15,100 detainees currently in US custody – down from a high of 26,000 in November 2007 – American officials expect the Iraqis will release between 9,000 to 10,000, while the remaining prisoners will face hearings. Many of those freed will benefit from an amnesty law passed by the Iraqi parliament that will pardon many for selected crimes committed before February 2008 – from weapon possession violations to planting a roadside bomb that did not kill or injure anyone.

"Personally, I don't think it's a good law, but it will help [with] national reconciliation," says Judge Abdul Sattar Bayraqdar, spokesman for the Iraqi High Judicial Council speaking specifically about pardoning someone who has planted a roadside bomb. Still, he also says that there is less of a reason for people to make bombs now that the US is beginning to draw down its forces.

Iraqi officials insist that those guilty of serious crimes will not fall through the cracks and be released from custody. If a particular suspect deemed dangerous can't be tried for a certain crime because of the amnesty law, officials say they could use another statute that can be used to convict a detainee.

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