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Invitation to a Court Hearing May 14th: Re the Destruction of Fallujah and Giuliana Sgrena
by Marti Hiken ( info [at] progresiveavenues.org )
Thursday Apr 26th, 2012 1:37 PM

On May 14th, in San Francisco, CA, Federal Judge James Ware, will render his decision in the FOIA case of plaintiffs Marguerite Hiken and National Lawyers Guild Military Law Task Force vs. Department of Defense and CENTCOM, defendants.


Colleen Flynn
Attorney at Law
3435 Wilshire Blvd., Ste. 2900
Los Angeles, CA 90010
213-252-9444 tel.
213-252-0091 fax

Marguerite Hiken
info [at] progressiveavenues.org


On May 14th, in San Francisco, CA, Federal Judge James Ware, will render his decision in the FOIA case of plaintiffs Marguerite Hiken and National Lawyers Guild Military Law Task Force vs. Department of Defense and CENTCOM, defendants.

Hearing Date: May 14, 2012
Time: 9:00 a.m.
U.S. District Court, Northern District of California, 450 Golden Gate Ave # 36060, San Francisco, CA 94102
(415) 522-2000
Courtroom 9, 19th floor
Judge: Hon. James Ware, Chief Judge

The Department of Justice and CENTCOM released over 800 pages of information concerning the incident involving Giuliana Sgrena and the destruction of Fallujah. Most the information concerned the Sgrena incident; although, to date, we have come up with nothing new from what information CENTCOM released to us. Based on "National Security" and "State Secrets," nothing was turned over concerning the reasons for the destruction of Fallujah and the slaughter of innocent civilians. The DOD made it very clear that the information, including the ROE, regulations, documents, etc., that all might shed light on the massacre, will be used again in the future and therefore would aid the enemy in current and future wars and thereby harm the U.S.

Our questions remain: If the U.S. military has free reign to destroy an entire city and not be forced to release the reasons why to the American people, then why couldn't they do the same thing tomorrow to the cities of Teheran or Cairo, or Paris? Where and how does the military get off destroying cities throughout the world? This isn't a question of national security, it is the very essence of what FOIA was about. If "national security" and "We can't tell you because we're going to do it again" are legitimate excuses from complying with FOIA, then there are no protections against the raw imperialist actions of this military. What were the rules and regulations for U.S. soldiers in Fallujah? How did these regulations and ROE lead to the destruction of Fallujah?

On March 17, 2005, over seven years ago, plaintiffs submitted a Freedom of Information Act request to defendant Department of Defense seeking the following:

(1) Any and all Rules of Engagement (whether called so, or by any other name) in effect for military personnel who, on March 4, 2005, fired upon, or ordered the firing upon, the car carrying Italian journalist Giuliana Sgrena while she was en route to the Baghdad, Iraq airport;

(2) Any other documents bearing on any purported justification for the actions taken by the military, or any personnel, in firing on Ms. Sgrena’s car on March 4, 2005;

(3) Any and all Rules of Engagement (whether called so, or by any other name) in effect for military personnel engaged in Fallujah, Iraq from March through December, 2004; and,

(4) Any and all documents (guidelines, directives, trainings, rules, orders, etc.) which relate to, touch upon, or concern the judgments of U.S. military personnel in Iraq in distinguishing between civilians and combatants, including without limitation such decision-making in Fallujah and along the road to the Baghdad Airport in Iraq.


Sgrena Incident

On March 4, 2005, soldiers from the Multinational Corps-Iraq (“MNC-I”) opened fire on the car carrying Italian journalist Giuliana Sgrena as she was being transported to the Baghdad airport shortly after being released from her kidnappers after exactly one month of sequestration. The soldiers’ gunfire killed Nicola Calipari, an Italian agent riding in the car who died protecting Ms. Sgrena from U.S. gunfire, and injured Ms. Sgrena, who took a bullet to the shoulder, and Andrea Carpani, Ms. Sgrena’s driver. This incident gave rise to allegations of wrongdoing by the soldiers who fired on the car and by the U.S. military and strained relations between the United States and Italy. It has also prompted critique of the Rules of Engagement (“ROE”) under which the soldiers were acting and inquiry into how the military distinguishes between civilians and combatants on the roads in Iraq. The US Military cleared those soldiers involved in the shooting of any wrongdoing, stating that they were acting within the Rules of Engagement.

Destruction of Fallujah

Ms. Sgrena was one of the only unembedded, independent Western journalists in Fallujah during the U.S. military-led siege on that city in April 2004. The siege was orchestrated in retaliation against the people of Fallujah for the killing of four American paramilitary contractors. The four brutally slain men were not U.S. soldiers, but “elite commandos,” employed by Blackwater USA, a highly controversial and discredited private security firm, to guard employees of U.S. corporations.

U.S. military personnel taking part in the siege were criticized for targeting and killing civilians; blocking access to hospitals; intentionally firing on ambulances; and using chemical weapons against the civilian population, including white phosphorus. No one knows the number of those who died because the devastation of the city was so great.

According to a report published on GlobalSecurity.org, the ROE the soldiers were given for the siege were “draconian"; the commanders in Fallujah did not authorize the use of non-lethal munitions. Instead, the ROE given to the soldiers focused on protecting U.S. military forces with shoot to kill orders on the sighting of anyone with an AK47 or Rocket Propelled Grenade outside a private home. The number of civilian Iraqi deaths resulting from the siege is disputed; however, on April 11, 2004, The New Standard reported that local medical authorities said over 600 bodies had been counted at emergency medical facilities; “a significant number of victims [were] buried without ever receiving care at a clinic or hospital… [; and] two entire football fields [were] converted into cemeteries.”

In light of the high number of Iraqi civilians who were killed during the siege on Fallujah, the Sgrena incident generated additional questions about the ROE under which the soldiers were acting in Fallujah. Even supporters of the war have harsh words about the ROE, saying “[t]he current ROE are ‘questionable.’ A Marine officer caught up in the bloody fight to clear Fallujah was much harsher in his assessment: ‘Blood,’ he observed, ‘is on someone’s hands.’” The high civilian death toll in Fallujah prompted further questions about the use of chemical weapons against civilians and how the military distinguished between civilians and combatants during the siege. Clearly, no rational, legal ROE could ever authorize such a wholesale slaughter of civilians and destruction of an entire city.

In response to the military’s actions in the Sgrena incident and in Fallujah, on March 17, 2005, the Military Law Task Force of the National Lawyers Guild and Marguerite Hiken submitted a Freedom of Information Act (“FOIA”) request to the Department of Defense requesting the ROE and other documents for the soldiers involved in the shooting at Sgrena’s car and the soldiers involved in the siege of Fallujah. In response, throughout the administrative process and throughout this litigation, defendants have been dismissive of their statutory obligations under the Freedom of Information Act.

They have furthermore been cavalier about both the FOIA’s presumption of disclosure and their burden – not the public’s – to substantiate their withholding of responsive records. The documents ultimately disclosed by defendants evince, clearly, that the government has no intention of sincerely responding to plaintiffs’ request and seeks to hide information that would shed light on war crimes and bloodbath in Fallujah. As Judge Patel has previously done, the Court should take the government to task for its dismal compliance with the FOIA and order the release of information the government seeks to keep from the American public; the Department of Defense and U.S. Central Command should not be allowed to hide behind the “trust us” rhetoric of “national security” to justify its withholding of documents that shed light on our military’s illegal and immoral conduct in the war in Iraq.