- The Washington Times - Monday, July 20, 2009

For more than a month, two U.S. citizens who worked for contractors in Iraq were held in prison with no formal charges against them.

They were pressed to sign an Iraqi government statement but refused, their attorneys say, and waited 43 days for their day in court before being released on bond after a hearing in Iraq’s Central Criminal Court over the weekend. Yet their attorneys say they still do not know specifically why they were detained.

The men weren’t being held by Iraqi authorities but rather by the FBI in a U.S. military prison, prompting allegations from their attorneys that American due-process laws weren’t being followed.

“When American citizens are held by American authorities, the Constitution and Bill of Rights all apply regardless of the technical circumstances,” said Tim Haake, a former two-star Army general and lawyer who is helping to represent the two detained men, Micah Milligan and Jason Jones.

Thomas Suddath, a lawyer in Philadelphia also representing the men, said U.S. authorities gave the legal team very little information about what charges were being contemplated against the men.

Stacey Jones, wife of Mr. Jones, said on Saturday afternoon that her husband was released from custody at Camp Cropper, the military prison near Baghdad International Airport.

“As of now he’s not sure what will happen next,” she told The Washington Times in an e-mail. “He went back to his room in the [international zone] and will meet with his lawyer in the morning to find out what the next step is. This is a big relief and one step closer to getting him home.”

FBI officials confirm that they had custody of the two men since about June 3. Mr. Milligan and Mr. Jones were arrested along with three other Americans by a task force of U.S. agents and Iraqi officials during an investigation of the killing of an American citizen. The men eventually were cleared of murder charges and three of the five were released from prison, though they were denied the right to leave Iraq, according to an Iraqi court document and lawyers representing the men.

Mr. Milligan and Mr. Jones remained in detention, based on unspecified evidence of other crimes involving weapons, drugs and license plates uncovered during the investigation, at the U.S. military prison at Camp Cropper, according to military and FBI spokesmen.

FBI Assistant Director John Miller told The Times that the men are “under investigation by Iraqi authorities for alleged violations of Iraqi law” and that FBI agents had custody of them at the U.S. military prison at Camp Cropper under a little-known 2008 agreement outlining the withdrawal of U.S. forces from Iraq, which contains a provision that FBI and U.S. military officials say allows the Bureau to assist Iraqi authorities in investigations of Iraqi legal violations.

The December 2008 U.S.-Iraqi troop withdrawal agreement contains a provision that states that U.S. forces can assist the Iraqi government in pursing “wanted” criminals.

“The FBI was requested to assist the Iraqi police in the investigation of the murder of a U.S. citizen,” Mr. Miller said. “That investigation led to the search, which resulted in the arrest of other U.S. citizens for the alleged possession of illegal weapons and drugs.”

Mr. Miller said the FBI is not aware of any allegations of misconduct by the FBI in the case. Asked whether FBI agents tried to force Mr. Milligan into signing a statement, Mr. Miller said, “We wouldn’t get into characterizing any specific conversations between an FBI employee and anyone in an ongoing matter.”

Legal analysts disagree about the ability of U.S. authorities to detain Americans in this way. “Anytime the U.S. acts in the detention and interrogation of American citizens, even when abroad, they are bound by the Constitution,” said Jonathan Hafetz, a lawyer with American Civil Liberties Union who has worked on legal issues related to the detentions of Americans in Iraq.

Former Pentagon detainee affairs specialist Charles Stimson, now with the Heritage Foundation, disagrees. He said the Iraqi government and the FBI can do exactly what they’re doing in this case.

Iraqis take the lead in all internal criminal investigations and U.S. military and law enforcement agencies can help Baghdad “when we have the manpower and ability to do so,” Mr. Stimson said.

“The Iraqis in this particular case clearly have legal custody of these two defendants,” he added. “They will be prosecuted under the Central Criminal Court of Iraq and it is quite common not to be apprised of charges. Iraqi prosecutors don’t have the same concept of due process or reciprocal discovery or discovery at all compared to what we’re used to.”

A spokeswoman for the Iraqi Embassy in Washington had no immediate comment.

Navy Capt. Jack Hanzlik, a spokesman for the U.S. Central Command, said Mr. Milligan and Mr. Jones are being held by U.S. forces “because of Iraqi law” and because, as contractors, they are not covered by the status of forces agreement that governs criminal investigations of U.S. military personnel in Iraq.

“The Iraqis have said we would like for you to hold them while awaiting a final decision on what the next step is going to be,” Capt. Hanzlik said prior to the release of the two contractors. “They could be sitting in an Iraqi prison subject to a different environment.”

According to an e-mail exchange between Mr. Suddath and Larry Farrell, a U.S. legal official in charge of the case at the U.S. Embassy in Baghdad, the Iraqi court authorized the release of Mr. Milligan and Mr. Jones late last week.

“We continue to work through this,” Mr. Farrell stated Thursday. “We are trying to make sure we have everything from the court, including not just the order authorizing bond, but an order from the court saying that all the bond requirements have been met and that the detainees may be released. The latter has proved problematic. I expect to have additional information tomorrow. I can assure you, everyone wants to get them out as soon as possible.”

Mr. Suddath, the defense lawyer, stated in response that “I have been told from my side that all bond conditions have been satisfied so it’s difficult to understand the substantial delay.”

A total of five men were first arrested by FBI agents, Iraqi police and U.S. Army personnel in Baghdad’s Green Zone on June 3 after the killing of American contractor Jim Kitterman, who was found stabbed to death in Baghdad May 22.

The men were later cleared of the murder charges by the Iraqi government, based on testimony from two Iraqi witnesses. A translated Iraqi court document stated that an investigator informed the judge in the case that the witnesses had testified that the murder was committed by an American man who was himself killed around the time of the Kitterman murder.

At one point in the case, FBI agents tried to force two of the men, Mr. Milligan and Mr. Jones, to sign a statement related to charges that they were involved in illegal drug activity and counterfeiting license plates, according to lawyers for the two men and an e-mail message from an associate of Mr. Milligan.

The two men refused and at that point were moved to the U.S. military prison at Camp Cropper.

According to the lawyers, a group of as many as 40 Iraqi police, FBI agents and Army Criminal Investigative Division agents conducted the June 3 raid on the compound of Corporate Training Ultd. (CTU), a contractor compound located near the site of the new U.S. Embassy in Baghdad. However, while computers, passports and identity cards of the five men were seized, no knives at the compound were taken during the raid as evidence, despite the fact that Mr. Kitterman had been stabbed, the lawyers said.

Mr. Miller, the FBI assistant director, said it would be a misstatement to assert that the FBI conducts investigations of Americans on behalf of the Iraqi government. “Through the U.S. Embassy and the FBI’s Legal Attache, the FBI would assist foreign law enforcement partners in almost any country where the police requested assistance, particularly where American citizens might be involved. In that regard, Iraq is no different from anyplace else,” Mr. Miller said.

The five Americans who were investigated for the murder of Mr. Kitterman and later cleared include Donald Feeney Jr., a former Army Delta Force special operations commando and CTU executive director who is a longtime contractor in Iraq; his son Donald Feeney III; Mark Bridges; and Mr. Milligan and Mr. Jones. The Feeneys, Mr. Bridges and Mr. Milligan are employees of CTU, while Mr. Jones works for another contractor, the Arctic Slope Regional Corporation Airfield and Range Services.

Mr. Feeney, his son and Mr. Bridges were released but remain under investigation and are forbidden to travel, according to an Iraqi court document.

“We’ve spent billions of dollars and thousands of lives to secure democracy in Iraq and now U.S. citizens in Iraq don’t have rights and can be locked away indefinitely,” said Mrs. Jones in a telephone interview from her home in Elgin, Ill.

According to Mr. Haake, a Central Command judge advocate general official told him the FBI role in the Iraqi criminal probe of the Americans was authorized under Article 22 of the 2008 agreement on the withdrawal of forces from Iraq. Section three of the agreement states that “the Iraqi authorities may request assistance from the United States forces in detaining or arresting wanted individuals.”

“My argument is that that is contemplated for arresting and holding Iraqi citizens,” Mr. Haake said.

According to a Congressional Research Service report from Dec. 12 on the withdrawal agreement, in the event of investigations in Iraq, “U.S. forces and civilian components are entitled to due process standards and protections pursuant to the Constitution and laws of the United States.”

• Bill Gertz can be reached at bgertz@washingtontimes.com.

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