My rejoinder to Hugh Gusterson’s comment on my 15 January piece “Captured Documents: Military Historians and Terrorism Scholars vs. Anthropologists?”
I would like to thank Prof. Gusterson for his thoughtful response to my posting. I rather imagine that he and I will not convince each other. However, I think this is a debate worth having so as to allow other people who are or may become involved in the issue to make an informed decision consistent with the ethics of their own chosen professions and with their personal moral sense.
I appreciate Prof. Gusterson’s clarification that there are, indeed, multiple different collections of Iraqi documents and that those documents presently at Hoover are different from those documents taken by the U.S. military. As I do not know the facts behind the collection at Hoover, I cannot bring myself to say that the same legal and ethical conclusions apply to those as apply to the others.
More substantively, however, it seems to me that Prof. Gusterson disagrees with me on two basic grounds. One relates to whether it was legitimate for the US Government to seize the Iraqi records in the first place. The other relates to whether it is legitimate to retain these records. Allow me to address these two issues in reverse order.
First, as I read the Trudy Peterson article that he and I have both referred to, international law speaks to the legitimacy of seizure not of retention. In fact, Peterson personally suggests that ‘in the years after the hostilities cease, the seized records should move into archival custody and, ultimately, be repatriated.’ Note the use of the words ‘years’ and ‘ultimately.’
Secondly, while I cannot speak for the U.S. Government and I don’t know what I don’t know, I have always been under the impression that the U.S. Government has never denied that these documents (media files, etc.) are Iraqi property and thus would be returned someday. (As an aside, it is my understanding that the records from Nazi Germany were not completely returned to Germany until the 1960s and I have heard from an historian who worked in them that the Imperial Japanese records were not completely returned until the 1970s.)
Thirdly, and most importantly, the documents referred to under Minerva and which will make their way into the Conflict Records Research Center are digital copies (mostly pdf, wav, and wmv files), not the hard copies themselves. Whatever conclusion one comes to with regard to proper disposition of the originals, there is no a priori reason to assume that this conclusion should apply to copies or to the information contained in the originals.
In the context of the current exchange, this confusion is my fault. I referred to “records” and “documents” when I should have referred to “copies of records and documents.” I apologize to anyone who was confused or misled.
Note that retention of copies of captured records has long precedent behind it. The National Archives and Records Administration’s Record Group 242 is “Collection of Foreign Records Seized.” This RG consists mostly of microfilm copies of originals. It contains materials dating back to 1675. These are copies of records not only from the obvious countries (Germany, Japan, North Korea, etc.) but also from countries with whom the United States has never been at war (e.g. Norway, the Netherlands, and Portugal).
Furthermore, it is my understanding that once copies (electronic or otherwise) are made of Iraqi records—and such copying is absolutely necessary for analysis for even the most obviously war or administrative-related analysis, let alone for work by historians—those copies become official U.S. Government records. As such, the U.S. Government is legally obliged to retain them.
With regard to the issue of seizure, Prof. Gusterson wonders if I have read the Trudy Peterson essay to which I provided a link. Allow me to assure all concerned that unless the last ~18 months are one big hallucination I have read it several times.
Prof. Gusterson goes on to note that the piece says that ‘combatants may seize records for use by occupation government.” He argues that there is no legitimate reason for the US to have these records now that the occupation is over.
There are two problems with this.
First, as noted above, the Peterson piece (and apparently international law) speaks to seizure, not retention
Second, the Peterson piece actually gives six legitimate reasons for the seizure of records, not just the one that Prof. Gusterson mentions. Collectively, they provide tremendous leeway for seizure. In Ms. Peterson’s words:
“To sum up, then:
- If the occupying power needs state records for military operations, it can seize them.
- If the occupying power needs state records for the administration of occupied territory, it can seize them.
- If the records are those of municipalities, religious, charitable, educational, and institutions of arts and sciences, they should be immune from seizure unless the persons employed by the institution are ‘definitely suspected of or engaged in activities hostile to the security of the State.’ Records of municipalities, however, are probably liable for seizure for the purpose of administering the municipality.
- If you are a private person or a private business or organization definitely suspected of or engaged in activities hostile to the security of the State, your records and personal papers can be seized.
- If you are a private person or business or organization that is not engaged in hostile activities, your records and papers are immune from seizure.
- If you are a prisoner of war, your ‘military documents’ can be taken from you, but all other personal documents are yours.”
A FINAL ISSUE
There is one more issue that concerns me. To be fair, this is not a point that Prof. Gusterson raised, rather it is one that I fear some people might read into his remarks. He pointed to a piece agreeing with his interpretation which was written by Dr. Saad Eskander, the Director of the Iraq National Library and Archive. Certainly Mr. Eskander is an expert in the field and his piece is well worth reading. That said, I fear that Dr. Eskander’s title may lead some to believe that the records under discussion came from “libraries” or “archives.” As far as I know, that is not the case. As far as I know, they came from working files.
Is this a relevant distinction? The Peterson essay speaks to this question, as well:
“But what about archives per se? The Hague IV Convention of 1907 does not use the word ‘archives.’ It is, perhaps, fair to read “archives” into Annex Article 56’s “property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property” but it is not explicit. Furthermore, archives are both cultural and administrative property and fit somewhat awkwardly in a purely cultural definition. The 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflict solved this ambiguity by including in the definition of cultural property to be protected ‘manuscripts . . and important collections of books or archives” and buildings such as “depositories of archives.’ However, its Article 3, item 2, notes that the obligation to protect such property ‘may be waived only in cases where military necessity imperatively requires such a waiver.’
“Can we stretch the definition in the 1954 convention to cover current records and personal papers? Probably not. While we could argue that letters in the possession of a soldier are “manuscripts” and the records of the secret police are “archives,” the intent of the 1954 Convention is clearly to protect noncurrent historical materials, particularly those housed in a facility designated as an historical archives.”