I received a reply from Prof. Hugh Gusterson to my recent posting on the dispute over whether documents captured in Iraq could legitimately be fodder for historians and others under the Defense Department’s Minerva program.
I would not want his response to be buried in the comments section, nor would I want my forthcoming rejoinder to be so buried, so they shall be the subject of this posting and the next. I would also be delighted to hear from others on either side of this debate.
Herewith Prof. Gusterson’s response:
My thanks to Mr. Stout for drawing attention to my article on the Minerva Initiative. Although my comments about the Iraqi documents captured by U.S. military forces constitute a very small part of the article, I welcome this opportunity to clarify my argument. Mr. Stout is quite right that the Ba’ath Party documents funneled by Kanan Makiya’s Iraq Memory Foundation to the Hoover Institute are distinct from the much larger collection of maybe 100 million Iraqi documents taken by the U.S. military early in its occupation of Iraq. My article (although it already exceeded the journal’s space limitations) would doubtless have benefited from a more elaborate description of the different kinds of documents seized and the different destinations they have found.
However, I must respectfully disagree with Mr. Stout that the DoD’s custody of these documents is permissible under international law and that researchers funded by Project Minerva to work in those archives will therefore have clean hands. Mr. Stout says “just about every country that has ever fought a war holds or has held captured records from its opponents. In fact, there is specific provision for this in international law.” One wonders if he read the article to which his blog refers readers since that very document makes transparently clear why it is illegal for the U.S. to retain the Iraqi documents DoD seized – documents that constitute the administrative memory of the Iraqi state. The article Mr. Stout cites says “combatants may seize records for use by occupation government. When a territory is occupied, the occupying power needs the records of the former government to enable the new government to function… It is reasonable to assume that such records as needed for governance are to be seized for use, not removal.”
Leaving aside the question of whether the U.S. occupation of Iraq was itself legal under international law, there are thus two reasons why the DoD’s removal of this massive archival treasure trove from Iraq contravene international law: (1) Instead of keeping the captured documents in Iraq for use in assuring administrative continuity (as permitted by international law), the U.S. removed them from the country as a kind of war booty for analysts in the U.S.. (2) Although the U.S. occupation has, in a formal legal sense at least, ended, taking with it any legal case for the U.S. to retain custody of these documents, the U.S. is not only keeping the documents but making plans (through Project Minerva) to institutionalize their use in the U.S.. Saad Eskander, the Director of the Iraqi National Archives, has written an article making clear that he sees no legal distinction between the Iraqi documents at the Hoover Institute and those seized by the DoD. His article specifically condemns Project Minerva for inciting scholars to work with the documents Mr. Stout has been working with. His article can be found at http://essays.ssrc.org/minerva/2008/10/29/eskander/.