Iraq War Stories: Justice in a War Zone

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Under Saddam Hussein, a fair trial in Iraq was pretty much impossible. So after coalition forces invaded in 2003, one of the challenges Iraqis faced was to create a justice system that actually delivered justice. Retired Army attorney Vivian Gembara of Denver, played a role in helping them. She joins us as part of our series “Iraq War Stories.” Captain Gembara served in Iraq from 2003 to 2004 with the 4th Infantry Division, which is based at Fort Carson.

Interview reported and produced by Shanna Lewis.

Listen to the entire series.

From Colorado Public Radio, I'm Ryan Warner and this is Colorado Matters. Under Saddam Hussein a fair trial in Iraq was pretty much impossible. So after coalition forces invaded in 2003, one of the challenges Iraqis faced was to create a justice system that actually delivered justice.

Retired Army attorney Vivian Gembara of Denver played a role in helping them. She's with us today as our series, Iraq War Stories, continues. Captain Gembara served in Iraq from 2003 to 2004 with the 4th Infantry Division, which is based at Fort Carson.

Vivian, thank you for being with us.

VIVIAN GEMBARA, Retired U.S. Army Attorney:

Thank you. It's nice to be here.

Warner: What was involved in rebuilding the Iraqi justice system.

Gembara: It started with the most basic things. The buildings that they worked in, many were burned down when we arrived, and it went to the most complicated aspects of law, which is evidence, just basic concepts of justice and they didn't have those in place when we arrived.

Warner: What was justice under Saddam Hussein? Like what did it look like?

Gembara: Saddam was basically the supreme judge and the one and only judge. He had his henchman judges underneath him, but they were all very strictly under his control. This didn't make major decisions, especially when it came to criminal matters, without strict parameters on what exactly they could do. And when it was more serious, everything went to Baghdad, which is where Saddam sort of mete out his punishment there.

Warner: So it was really centralized.

Gembara: Very centralized-- completely centralized.

Warner: And does that mean that you're going in and creating a system has tentacles in communities outside Baghdad?

Gembara: Oh, yeah. It was very difficult, at first, to get the judges in our regions to believe that when we were trying to empower them with some control over their own region in terms of justice. They didn't believe us. They would always go behind our backs and still try to check with the higher Baghdad authorities through their own chain of command.

Warner: I'd like to illustrate this for folks.

Gembara: Sure.

Warner: So if I was accused of, I don't know, theft or murder or something in the old system, what would happen to me and what about that system were you trying to change?

Gembara: That's a very good question. So, for instance, let's say we're an hour or two hours out of Baghdad and there's a local infraction, some criminal matter came up, and someone was brought in-- the suspect was brought in accused of something as serious as maybe attempted murder or burglary or something. He wouldn't be tried in that region we were in. He would, under Saddam, be sent straight to a court in Baghdad and then you would, possibly, never hear from him again.

Because that was such a serious matter, it goes straight to Baghdad. Those local judges really didn't have much say in the matter. They just knew that their job, their duty, was to ship the guy to Baghdad.

Warner: And once in Baghdad, would there have been any semblance of a trial?

Gembara: Under their system, they'd-- there was, I would say, a semblance of a trial. They had court rooms, not-- like we wouldn't understand the setup at first. There would be almost like a cage in the middle. Think of a large human crib, almost, and that's where the defendant or the accused would stand, basically, while he was berated with all the accusations against him.

Whether or not he had the ability to speak in his own defense, really-- rarely happened, because it didn't help him or her.

Warner: Or her?

Gembara: Once you're accused under Saddam you don't know where it's going to go, whether you're truly innocent or very guilty. I mean, it's-- I would say, for the most part, you're screwed.

Warner: Okay. And you said, you know, that person might be whisked away to Baghdad and never seen again.

Gembara: Correct. There was no rights of the family to really know what happened. They could inquire through the channels that they knew of, but usually these were very scared people and they didn't want to push too hard, because then they would look like they were opposing what was happening and then they would have retribution through Saddam's henchmen in the area.

Warner: Well, back to your work to change all of this, what a daunting task that must feel like.

Gembara: It was incredibly overwhelming at first, because I would show up at courthouses, what they deem their courthouse. They didn't have computers. They usually would only have one working phone and if the electricity was working, it would work.

And they were incredibly scared. The judges and the staff, oftentimes, they wouldn't show up to work, because they were afraid people would attack them on the way in, because there was a lot of anger when we arrived. And almost all the courthouses had been looted by the time we actually showed up.

Warner: In rebuilding or just plain building a justice system, do you bring in new judges or is it that you retrain the old ones?

Gembara: That was exactly what we spent a lot of time. Our first task when it came to the judges was vetting them. And by vetting them, we were told to-- it was under the de-Baathification policy. We had to go in, sit the judges down and this is-- when I saw we, it's just usually the unit's lawyer, which is my position, and maybe some JAG personnel.

And we would sit and ask them, do you swear your allegiance to this new regime and denounce the Baath party. Now they were all, by-- just by being judges under Saddam, members of the Baath party, and so they were frightened by signing these papers I was asking them to sign that they were implicating themselves, should we leave tomorrow, because they always thought we were about to leave and then the Baath regime would sort of resurface and kill them.

Warner: And did they sign them?

Gembara: I would say 60% of the time they would sign them and then the few that really didn't feel comfortable, I wouldn't see them again. They wouldn't show up again. I'd ask where that judge was and they'd be like, I don't-- none of them seemed to know.

And those were the individuals, obviously, that would come up on our radar, like are these very loyal Baath party members? Are they going to resurface in insurgent activity and so forth?

Warner: Then how did you get replacement judges?

Gembara: Well, that came basically through my chain of command, through Baghdad. They would say, hey, to the lower JAG personnel, us in the field, we have a new guy. This is the name of the new guy. He'll be showing up in your region soon. Sometimes they would show up; sometimes they wouldn't.

Since we had such terrible communication out there, a lot of times people would show up and claim to be judges and they weren't and, you know, I'd work with them for a day, because it took about two to three days to sort of verify anything through my higher chain. I'd say, I have this guy here. He showed up, because you said that someone was coming and then I would come to find out that he wasn't the right guy or something.

Then he would disappear. It was sort of chaotic, very chaotic at first, but once we hammered down who those judges were, we could proceed with the next step is training them.

Warner: Training them to?

Gembara: Training them to understand the very basics of criminal justice, and evidentiary rules and people-- that the defendants have rights, the accused have rights. They call them the accused there.

And that starts from basic property issues, which are usually what dominate the outlying regions, property disputes, to more serious matters, criminal matters. And less, like misdemeanor-type criminal matters. Those started to be adjudicated at the lower levels, which was very new to these local judges, because they felt that-- usually in the past, it would go straight up to someone else.

Warner: In other words, cases weren't really triaged prior to--?

Gembara: Oh, no, no, no.

Warner: They were all sort of lumped together as--?

Gembara: Yeah.

Warner: You're listening to Colorado Matters. I'm Ryan Warner and our guest is retired Army attorney Vivian Gembara of Denver. She, in the early days of the Iraq War, worked to rebuild the justice system in Iraq and explaining to a judge the basic rights of a defendant or the accused.

Gembara: Um-hmm (affirmative), yes.

Warner: Did they get it, at first?

Gembara: They got it-- you would talk to them, obviously with translators, but some of them spoke English. They would always nod and agree initially and then when you'd sort of sit in on proceedings or review paperwork they had provided about certain proceedings, you would realize that they really didn't get it.

And that's okay, because they didn't come through our legal system. You know, they didn't go through our law schools. So they didn't understand that really when you have a defendant that person is allowed to bring in an attorney to represent them. So they would often keep the attorneys out of the room, like the courtrooms.

And what happened was the bar council of defense attorneys really united and they would come to me because they saw me as the person that was really going to get these judges to understand what their role was. They seemed to understand their role immediately, because, obviously, it was a way to make money for them, too.

Warner: Do you remember an interaction with a judge where you felt particularly effective?

Gembara: You know, I think legal scholars will blanch at this, but I think when I felt most effective was, essentially, making sure that they felt protected and that involved me making sure that they had 9-millimeter guns. And when we arrived in Iraq, we immediately took away, everyone's, you know, personal weapons to the extent that we could, that they wouldn't hide them or so.

So, the judges in the outlying regions in Iraq, were not allowed to work in the areas that they lived and that was under Saddam to create objectivity. Like he didn't want them to sort of-- to be collusive with the local people. So if you lived in Samarra, you had to work in Balad, which is like 60 miles away.

Obviously, when I showed up at these courts, these judges that were driving to the courthouses felt that the people of Balad didn't trust them, especially if they were coming from Samarra, a different region and especially if they were coming from Tikrit, Saddam's old town. So, they felt very wary of showing up at work and the reason being is that they didn't have a weapon.

And I know that sounds sort of crazy to people back here, because you know-- people-- we don't carry around sidearms, but it was, to a large degree, the wild, wild West out there. And with the attacks-- you know, locals know that judges have more money, many of them were killed and that was all in the news, as they tried to travel to work.

So it's such a basic concept. But the first thing that they would always say to me, the judges, in meetings, was we feel afraid. We don't want to come to work. Can you help us? And short of giving them armed guards, which I didn't have the ability to do, I was able to get them issued officially 9-millimeter guns, each one of them.

Warner: Did they use them?

Gembara: Not that I know of, before I left, but to have it with them was the point. Like they would often be at security checkpoints as we turned over the security aspect of Iraq to the Iraqi forces. You know, Iraqi forces, police and local police would always set up these security checkpoints. And here's a guy coming from a different town. By having a weapon with him, he showed I have authority, you can't just steal from me at this checkpoint and here is my ID and here's my weapons pass, which has been officially issued by the Coalition, which was, obviously, through me.

Warner: Our guest is retired JAG attorney Vivian Gembara of Denver. Between 2003 and 2004, she helped create a new court system in Iraq as a member of the Army's 4th Infantry Division, 3rd Brigade Combat Team out of Fort Carson. She's telling us her Iraq War Story. This is our ongoing series on Colorado Matters about the end of combat operations in Iraq.

When we come back, the other aspect of Captain Gembara's work — prosecuting U.S. soldiers who committed crimes, sometimes against Iraqis. This is Colorado Public Radio.

You're tuned to Colorado Matters. I'm Ryan Warner. Today our series, Iraq War Stories, leads us to retired Army attorney Vivian Gembara of Denver.

We've already heard about her work to create a functioning court system in Iraq. Now, to the other part of her job there, prosecuting U.S. soldiers who committed crimes, some of them against the Iraqi people. As a JAG attorney for a brigade of some 3,500 soldiers, Captain Gembara was the point person for these kinds of cases.

Gembara: I tried the first major criminal trial in Iraq and that involved two soldiers that decided to leave their unit in the middle of the night and they carjacked an Iraqi, forced that Iraqi to drive the car with them in it towards the border of Iraq and Kuwait. They were trying to escape. And those soldiers were eventually stopped at a roadblock, thank God.

Warner: And these soldiers eventually were trying to go AWOL.

Gembara: Yes.

Warner: Why?

Gembara: That's a very good question I was never able to personally ask them, as the prosecutor. But I think it's-- you know, they're young soldiers and sometimes it's stressful and I think that they were just overwhelmed, perhaps, by the environment they found themselves in.

Warner: What happened to the soldiers?

Gembara: Sure. They were dishonorably discharged. One received six years in jail and one received four years in jail.

Warner: You've written a book about your experiences as an attorney in Iraq. It's about a cover-up that you witnessed.

Gembara: It is about, basically, when I was there and I was working with the unit itself, several allegations came forward from the Iraqi people about things that our soldiers had done unlawfully, pushing individuals off of bridges, kidnapping them, all the way to executing them, not under insurgent attacks or so forth, not in the heat of combat.

And those allegations came forward and we found at the very basic level that there was some guilt on our part-- on soldiers' parts, that they had, you know, at the first allegation pushed innocent Iraqis off of bridges, sort of for fun, for sport, and also to retaliate after our unit had received fire and we had lost individuals, as well.

Warner: Is this a fall that would have killed the person?

Gembara: Well, in the two instances we initially investigated, one of the Iraqis that they pushed off a bridge could not swim, so he did die and it was the individual that got away that sort of came forward right away and said, you know, I was out there with my cousin and he's gone now.

Warner: And there was an effort to cover up this kind of behavior?

Gembara: Yes, soldiers initially-- there were involved initially denied it adamantly. Eventually, one of them cracked and told the truth and that led to the others telling the truth and what we came to find was that there was collusion. All of them had sort of agreed to say a certain story to avoid the charges.

Now where did that start? Who directed them to not tell the truth and that's where the cover-up really got complicated, because it went up the chain of command and implicated, ultimately, the battalion commander, who was a lieutenant colonel.

Warner: And what happened to-- is it a him?

Gembara: Him, yes. He was given a letter of reprimand, essentially, and then just voluntarily left the military.

Warner: Was it part of your goal to figure out why this happened and suggest ways that it not happen again?

Gembara: Most definitely. I think anyone in a legal position, especially as a prosecutor — and after working with this unit so closely. I mean, I was part of the unit from long before we left for Iraq. You definitely want to put steps into place to help avoid this from happening again. But I think it ultimately comes down to leadership.

You know, these are young soldiers on the line. They need leaders to tell them what is right and what is wrong and in this instance, you have an individual that's a lieutenant colonel, greatly admired, very dynamic and when he doesn't say it's wrong, he's essentially condoning these activities, that's where it goes wrong, everything goes wrong. So it ultimately comes down to leadership to avoid these things from happening.

Warner: Did you ever just ask the soldiers who perpetrated these crimes what were you thinking, why did you do this?

Gembara: Well, I personally didn't ask them. Only when it got to the point where they were witnesses in the trial did I sort of ask them, but, yes, of course, that was the number one that comes to mind when bad things happen, why? And in this instance, why did you lie about it, too.

The lie-- it starts out with fear. They were afraid. They were afraid of the guy that came up with the idea, who was a senior non-commissioned officer, a sergeant first class, and he was sort of the bully of that unit and he would order these soldiers to do these things because he thought they were funny. And if they didn't comply, he would threaten them with physical harm and that's what came out on that end.

Warner: Peer pressure.

Gembara: Oh, at the worst level.

Warner: Peer pressure and the pressure of being in this environment.

Gembara: Yeah, an environment where when they're out there they're scared for their lives, but when they're not scared for their lives, they're empowered with a supreme sense of power and lack of accountability, which is so dangerous, the combination.

Warner: And their behavior is also counter to the mission.

Gembara: Completely counter to everything that they were sent out there for.

Warner: Because the U.S. is sort of fighting this perception of this is an invasion--

Gembara: Oh, an occupation.

Warner: An occupation.

Gembara: Yeah, we were supposed to be out there to win their hearts and minds. We're not winning any hearts and minds, because what happens is when you have a unit that's sort of acting outside of their authority, which this unit was — let me clarify, not a lot of units do. This is a very rare instance. But when that happens, it infects the local population. They don't trust us.

And, unfortunately, for me as the legal person, we also were the people that took in claims. That means when we do something wrong to Iraqis, like we kill their cow when we're coming through the field or so forth, they will come to us and say, hey, you killed my cow. I deserve some money. Compensate me.

And that's why we are also the first line for people coming forward with allegations of criminal activity by our soldiers.

Warner: Was the family of the man who died, who drowned, compensated?

Gembara: They were compensated. That is a policy that's really well known. When we-- soldiers or the U.S. Army act outside of the scope of combat we do provide compensation to the family.

Warner: How much? Do you remember?

Gembara: I'd say it's a couple thousand dollars. And, you know, for the record, the family when I offered them that money was offended and refused that money, because they felt like the U.S. Army was trying to buy them off and they were a relatively well-off family. They didn't want it to seem that they were making these allegations falsely and that they would be fine with the money that we offered. They wanted justice for their son that died. That's all they really wanted.

Ultimately, I got them to agree that there was no connection. That we weren't trying to buy them off of their claims.

Warner: And somehow circumvent justice.

Gembara: Yes, yes. And, you know, that was a very difficult time.

Warner: What was the most severe penalty meted out to someone involved in that?

Gembara: Well, that's sort of the catch of it all was that through the cover-up and the higher chain of command not wanting to go forward with a lot of these charges, not much. A lot of the soldiers were sort of given a slap on the wrist and, you know, some were tried, but they were retained in the military. You know and I kind of spell it out in the book what happened and leave people to draw their own conclusions as to why that happened the way it did.

When it comes to evidence collection in the criminal trial, there is not a lower standard as a prosecutor for me when I was collecting the evidence in these matters. And when you don't have the key piece of evidence, which is the body of the drowned individual, that's going to severely hamper any prosecution later and I think most people will understand that.

Now why we didn't have that body was because we had the order to go it and then it was retracted. They took away that order specifically, I believe, to hamper the trial.

Warner: I mean, we started out this conversation talking about the failings of the Iraqi justice system and we wind up with the failings of the military justice system.

Gembara: Yeah, it's-- especially in a combat environment, it's very heated and very complicated.

Warner: Vivian, thank you so much for your time.

Gembara: Thank you.

Warner: Retired Army Captain Vivian Gembara served as a JAG attorney in the early years of the Iraq war. She wrote a book about her experiences in Iraq called “Drowning in the Desert, a JAG Search for Justice in Iraq.” She now works in the Colorado Attorney General's Office in Denver.

The conversation is part of our series, Iraq War Stories, and all these interviews are at our website,

We'll pick up Wednesday, November 10th, with Nazar Al Taee. He's Iraqi and was an interpreter for the U.S. military. That sometimes meant going into combat with troops, including one mission to the so-called Triangle of Death south of Baghdad.

NAZAR AL TAEE, Former U.S. military interpreter:

They asked me to go with the Marines as a part of the big mission to this area, because al-Qaida members, there was a lot of al-Qaida members was living and surrounding this city. So we went there. I was at the building with four guys from the Marines and they start shoot as-- by the mortars and one of the mortars I can hear it's coming and I just laid down and it hit two or three feet from my legs.

Warner: And what happened to your legs?

Al Taee: Oh, it's a big explosion happened beside me and there was a lot, like maybe 80 shrapnels coming inside my legs.

Warner: Soon after, Al Taee and his family got the chance to relocate to the United States. He, his wife and three children now live in Denver.

We're going to take a break from our Iraq War Stories next Wednesday to bring you a post-election special. So you can hear Al Taee's story Wednesday, November 10th.

Shanna Lewis produced today's show. Our senior producer is Sadie Babits and I'm Ryan Warner. This is Colorado Matters from Colorado Public Radio.