IRAQI RECORDS, U.S. INVOLVEMENT

Trudy Huskamp Peterson

17 February 2008

Wars disperse records. Armies seize records as they advance, and this is accepted as part of the laws of war, within limits. (For a longer discussion of the laws of war as they apply to records seizure, see Trudy Huskamp Peterson, “Archives in Service to the State,”.) Ultimately, the records seized by armies must be returned to the original owner. In addition to armies, many other interested parties seize documents in wartime. During the two Gulf Wars, from different sources, at least five different bodies of records came into U.S. hands. Each of these has a different history and quite possibly will be returned to different ultimate custodians. The following is a brief discussion of these bodies of materials and some issues surrounding their restitution.

1. Records seized by Kurds during the First Gulf War. During the First Gulf War, Kurdish groups seized an estimated eighteen tons of Iraqi records in northern Iraq. They included the records of the Iraqi secret police in the three northern Kurdish governates of Iraq, records of the Baath party from the region, records of local government offices, and records of regional offices of the central government in Baghdad. In May 1992 and again in August 1993, Kurdish parties entered into agreements with Middle East Watch and the U.S. Senate Foreign Relations Committee to relocate the documents to the United States. Through the intervention of Peter Galbraith, then a staff member of the Committee, the U.S. Air Force flew these records to Washington, the Foreign Relations Committee declared them records of the Committee, and the U.S. National Archives provided storage space for them. The records were analyzed by Middle East Watch, digitized by the Defense Intelligence Agency, and copies provided to the Iraq Research and Documentation Project at Harvard University (see 5 below) and probably to other entities. Subsequently the Senate Foreign Relations Committee transferred the records to the University of Colorado with the stipulation that the ownership of the records resided with the Kurdish parties that had seized them.

In 2005, during the Second Gulf War, the U.S. Department of Justice asked Colorado to turn the records over to it, probably for use in preparing the case against Saddam Hussein. Then in 2007, the U.S. government, with the participation of the Iraq Memory Foundation (the successor to the Iraq Research and Documentation Project), shipped the records to Kurdistan to the Kurdish parties. Although the records are clearly government records, they did not go back to the central government of Iraq, either to the successors of the creating agencies or to the Iraq National Library and Archives.

2. Iraqi Jewish archives. In May 2003 the U.S. Army discovered a body of Jewish documents in the basement of the Iraqi Security Services. The materials had been damaged by flooding and had serious mold problems. The Army arranged to freeze the documents to stop the deterioration, and conservators from the U.S. National Archives flew to Iraq, at the request of the Coalition Provisional Authority, to assess the situation. Ultimately the materials were flown to the U.S. by the military, freeze dried at a facility in Texas, and then transferred to the U.S. National Archives where they remain. In 2005 the National Endowment for the Humanities gave a grant to the Center for Jewish History in New York to do an initial survey and description of the items, but complete processing awaits money from private donors.

And there is the problem: donors want to know what is going to happen to the materials when the archival work is completed. Are they going to a Jewish archival institution in the United States? Are they going to an institution in Israel where a sizeable number of Iraqi Jews live? Are they going back to Iraq, although there is no Jewish community left there? The argument for returning them to Iraq is that the documentary evidence of the historic Iraqi Jewish community is part of the archival patrimony of Iraq. Once in Iraq, any responsible institution, including but not limited to the national archives, could hold the Jewish materials. The argument for restituting them to a Jewish institution is that these were never government records and that they should be in the hands of either the direct successors of the creating Jewish community or an institution that is also directly concerned with Jewish heritage. It is not at all clear who will decide on the disposition of the materials.

3. Records seized by the U.S. military and intelligence agencies during the Second Gulf War. The U.S. military and intelligence agencies seized millions of pages of Iraqi records during the military campaign. Estimates of the quantity obtained vary, with the press reporting that the U.S. has 48,000 boxes or 2 million documents or 100 million pages. The press also reported early in the war that the seized records were taken to Doha, Qatar, where they were stored in a military facility; some observers believe they have since been transferred to the U.S. but their current location is not known. It is likely, also, that some records continue to be seized during military and intelligence operations, but the large seizures are probably in the past. And it is also likely that the seizures include government records, Baath party records, records from non-governmental organizations, and personal papers.

The U.S. military scanned some if not all of the seized records. Copies of the scanned items surely exist in duplicate sets, both within the U.S. government and possibly with the U.S.’s coalition partners. In March 2006, at the urging of Representative Peter Hoekstra (R.-Mich), the Office of the Director of National Intelligence asked the U.S. Army Foreign Military Studies Office to begin posting to its website copies of the “documents and media captured during Operation Iraqi Freedom” (ODNI News Release No. 7-06, March 16, 2006). But in November 2006 the government reversed this decision and the website was closed after posting only a few hundred items.

The major issue with these records is to what institution in Iraq will the originals be returned and when. As reported by John Gravois in the Chronicle of Higher Education (February 8, 2008), the Iraq National Library and Archives and the Iraq Memory Foundation each have made public calls for the records to be turned over to it. For records of the Iraqi government, including the Baath party records as an arm of the state, the archival principle of inalienability requires that they be returned to the national government of Iraq for preservation in the national archives. Any materials obtained from non-government bodies and private persons should be deposited where the creating entity or its legitimate successor decides. But who in the U.S. government will decide where the records are sent and when is not clear.

  • Records seized from non-governmental combatants. In the fall of 2007 the U.S. military seized a quantity of records in the northern Iraqi town of Sinjar from an al-Qaeda affiliate in Iraq. The quantity of records seized is not known, but they included 700 records of foreign nationals that entered Iraq. Where the records are currently located is not known, although at least scanned copies of the records of the foreign nationals were provided to the Army’s Center for Combating Terrorism at West Point where they were analyzed and an analysis published. Like the government records in 3 above, copies of these items are probably shared within the intelligence communities in the U.S. and the U.K.

These records were never records of the Iraqi government. Returning them to the original creator or its successor in interest is clearly not plausible, at least not in the foreseeable future. And like the Jewish materials discussed in 2 above, there is a case to be made for sending these to the Iraqi government for deposit in the national archives, as part of the national patrimony of Iraq. Here, too, who will make the decision on return and when is unknown.

5. Records obtained by the Iraq Memory Foundation. The Iraq Memory Foundation, a U.S.-based entity with headquarters in Washington, DC, went to Baghdad shortly after the invasion and began gathering as many documents as it could find. The Foundation’s website says its main holdings are “the North Iraq Dataset, a collection of 2.4 million pages of official Iraqi documents captured by Iraqi Kurdish groups during the 1991 uprising; the Kuwait Dataset, a collection of 750,000 pages of Iraqi documents captured in Kuwait after its liberation by Coalition forces in 1991; and the Ba’th Regional Command Collection, approximately 3.0 million pages gathered from Ba’th Party Regional Command Headquarters in Baghdad following the fall of Saddam in 2003.” Initially the Foundation kept the materials it picked up in Baghdad in the house that Kenan Makiya, the director of the Foundation, has within the Green Zone. In February 2005 Makiya persuaded the U.S. military to fly these materials to a military base in the U.S., scan them (with copies for the U.S. government and for the Foundation), and then transport the materials to a storage facility chosen by the Foundation. This is the body of materials that in January 2008 the Hoover Institution agreed to store.

The records of the government bodies and the Baath party should be returned to the government of Iraq to be maintained as part of the official records. Any materials gathered from non-government bodies and private persons without prior consent of those bodies or persons should be deposited where the creating entity or its legitimate successor decides. That could be in an institution in Iraq, either public or private, or in another country if the owner wishes. Again, the question of cultural patrimony of the materials has to be addressed if the records are to be held in an institution outside Iraq.

As this brief survey shows, the situation with the various bodies of records now in the U.S. or previously in the U.S. is complex. The official records of the Iraqi government need to go home to Iraq, to the official custody of the government of Iraq in its Iraqi National Library and Archives. The records that have been sent to the Kurdish faction in northern Iraq should be the subject of discussions between the current custodians and the national archives of Iraq, with the goal of bringing the records under (at minimum) the general rules of the archival system of Iraq. The U.S. government should be extremely careful as it makes the determinations about the destiny of the Iraqi materials in its custody. The U.S. actors should respect the principle of inalienability of government records and make sure that when those records are transferred to Iraqi control they go to the national archives. For the non-government records, the U.S. government should consult with all the interested parties, both Iraqi and non-Iraqi, government and non-government, and make decisions based on the principle of ownership and the respect for cultural patrimony.