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Where to Draw Line on Paying Damages in Iraq

U.S. military agrees with critics that the system is confused and arbitrary, but cites the obstacles faced in moving from combat to occupation.

March 06, 2004|Charles Duhigg | Times Staff Writer

BAGHDAD — Four months after his son lost an arm to an errant U.S. bomb, Latif Fendi Diwan approached the military seeking $10,000 in compensation. His plea was denied, he said, and the file he submitted bears a note in English reading "No responsible U.S. Army member available for verification of accident. No negligence established."

Three months ago, Alwa Rashid Abdul approached the military seeking compensation after his car was destroyed during a gun battle between U.S. soldiers and Iraqi insurgents. In February, Abdul received $2,500 from a U.S. Army captain.

The difference between these two cases, say military lawyers, federal officials and independent observers, illustrates the confused system of compensation for deaths, injuries and losses in the U.S.-led war and occupation in Iraq.

"It's pretty random which cases are approved," said Sgt. Will Lewis, a 24-year military officer responsible for processing compensation claims in Baghdad.

Difficulties over compensation are stoking Iraqi resentment against the U.S. and they demonstrate what happens when the military moves from assault to occupation. Army lawyers say the applicable statutes are inadequate for Iraq; it is often unclear where combat begins and ends.

But some U.S. officials have accused the military of erecting obstacles to compensation because of a deep ambivalence about admitting responsibility.

"There are many instances when innocent victims were killed or injured because of military actions and the Pentagon did nothing to assist them or their families," said Tim Rieser, aide to Sen. Patrick J. Leahy (D-Vt.), who sponsored legislation for funds to assist Iraqis injured in the war.

"The Pentagon is reluctant to establish a precedent of cash compensation for losses during a war."

Military officials say that they pay more compensation than is required by federal and international laws and that more liberal distributions of funds may decrease the security of U.S. operations in Iraq.

Since May, the U.S. military has received 15,000 claims from Iraqis seeking compensation for injuries or damage caused by military activities, a military spokesman said. About 5,600 claims have been paid and 5,700 denied. Military officials said about $2.2 million had been handed out.

Some of those payments were authorized by the Foreign Claims Act, which established guidelines for compensation to foreign citizens injured by U.S. military negligence. The act, however, has strict limits: Injuries and damage sustained as a result of combat are not covered.

"The FCA is great in real combat situations. But it doesn't work in Iraq," said Maj. Thomas Travis, a military lawyer stationed in Iraq who reviews compensation claims.

"Here, it's totally unclear where combat begins and ends."

Travis and other military lawyers said their use of FCA funds was limited to clearly noncombat situations such as car accidents with U.S. military vehicles.

Travis recently reviewed the claim of a 6-year-old girl who lost an arm after she was hit by bullets fired by U.S. troops pursuing an attacker. Under the Foreign Claims Act, she is ineligible for compensation because most gunfire or bomb explosions are considered a combat activity, he said.

"The army only knows one way to use force, and it's heavy- handed," Travis said. "We need a new law that's more flexible."

In response to the FCA's limitations, the military has authorized commanders to make goodwill payments to injured Iraqis. These payments, part of the Commander's Emergency Response Program, draw on seized assets and other funds also used in the rebuilding of Iraq.

Army lawyers estimate that the amount of money handed out under the response program is 10 times the sum awarded under the FCA.

One lawyer reported receiving 150 to 200 death claims in six months and awarding payments under the Commander's Emergency Response Program to 60% of them. Lawyers are authorized to recommend $2,500 for a single death, though commanders have increased awards to at least $11,000.

Commanders have discretion in approving or rejecting claims under the response program and are not guided by official criteria. There is no appeals process.

Critics say this system is too arbitrary. Iraqi lawyers and human rights activists say similar claims frequently achieve different outcomes.

Military observers agree.

"I've seen basically the same cases submitted, and one gets approved and the other you never hear about," said Sgt. Lewis, the claims processor in Baghdad.

Army lawyers agree that similar cases may achieve different outcomes depending on the attitude of a particular commander or the available evidence.

One obstacle, observers say, is that the burden of proof lies with the victim.

"If the victim can't identify the soldier who shot them, we can't verify it happened," Travis said. "Soldiers are supposed to file a report after each incident or accident, but they don't want to stop for an ambush or don't want to deal with repercussions, so they don't file."

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