WASHINGTON -- On a dusty street in Samarra, a bustling city north of Baghdad, two brothers, 10 and 12, are carrying plastic bags of groceries home from the market. Approaching an intersection guarded by U.S. troops, they strip off their white undershirts and wave them in the air as they cautiously venture across. Suddenly, shots.
Down goes the 10-year old, his stomach ripped by bullets. Down goes the 12-year-old with his stomach shot away.
This snapshot, as documented by Iraqi witnesses, is the mundane and perhaps inevitable collision between Iraqi civilians and heavily armed troops who are maneuvering, against a shadowy enemy, entirely within a civilian world of schoolchildren, bustling markets and traffic jams.
Few of these incidents draw the white-hot media attention that Blackwater and other civilian contractors have achieved with the alleged shooting of Iraqi civilians by the company's security guards.
And in the daily and often deadly encounters of Iraqi civilians with the U.S. military documented in hundreds of case files recently released by the Army, there is often no one clearly at fault.
But the steady accumulation of sorrow, pain and frustration that these cases engender might be keeping out of reach a critical U.S. goal in Iraq: winning the support of the civilian population. Without that support, experts say, no troop withdrawal plans or demands for political reconciliation in Iraq will matter.
"Fundamentally, in a counterinsurgency you have to provide security for people and convince them there is hope for a better future," said retired Marine Col. Thomas X. Hammes, who served on active duty in Baghdad and later wrote a book on counterinsurgency warfare, The Sling and the Stone.
Or as Lt. Gen. James Mattis directed his Marines operating in Anbar province: "First, do no harm."
American troops are exhaustively trained to avoid harming innocent civilians, and they operate under strict rules that govern when lethal force can be used. Unlike private security contractors, U.S. military clashes with civilians are routinely investigated.
But for Iraqis such as the father and extended family of the two boys killed in Samarra in October 2005, nothing "explains or palliates their loss," said Gary Solis, a retired Marine officer and expert on military-civilian clashes who teaches law at Georgetown University. "The U.S. usually -- almost always -- becomes the object of the survivors' anger and hatred."
That could explain the anger, baffling to some outsiders, that many Iraqis express toward the United States, rather than gratitude for toppling Saddam Hussein. According to an August poll of more than 2,000 people across Iraq, 72 percent said the American presence in Iraq is making things worse, up from 69 percent in February. Eight-five percent said they had "not much" or "no" confidence in U.S. forces, up from 66 percent in 2004.
For moral but also purely war-fighting reasons, the military has struggled to ease the impact of its operations. The troops invading Iraq in March 2003 brought with them soldiers trained to handle claims by Iraqi civilians of wrongful death, injury or damage. Their key tool was the 1942 Foreign Claims Act, designed for an entirely different kind of warfare but intended "to engender good will and promote friendly relations" with civilians, said Army spokesman Paul Boyce.
In addition, since March 2004, the U.S. command in Baghdad has authorized combat commanders to offer "condolence payments" of up to $2,500 for death, injury or property damage. Commanders are given broad discretion to offer such payments depending on local conditions. In both cases, however, there are drawbacks.
In the Samarra case, the dead boys' father came to the 101st Airborne Division asking for compensation. His sons waved their white shirts as a "symbol of peace," he explained.
Asking for $6,000 compensation, he offered death certificates, witness accounts and legal opinions. It was not enough. An Army lawyer denied the claim citing "the Foreign Claims Act, 10 U.S.C. 2734, as implemented by Army Regulation 27-20."
The father -- his name and all others on the released documents were blacked out by Army censors -- ran afoul of the law's fine print, which requires proof that American soldiers were negligent. On the form handed back to him, an Army lawyer had circled one of five reasons for denial, explaining that there was "not enough evidence to prove your claim."
Claimants also must establish that they are "friendly to the United States." And any deaths that occurred during combat operations are ineligible for payments, a criterion that could exempt nearly every claim.
"You look at the soldiers involved, and if they felt they were in combat, if they perceived a threat and reacted, you were supposed to conclude that that was a combat operation," said Jon Tracy, a retired Army officer who processed claims as an Army lawyer in Iraq for 14 months in 2003 and 2004.
Tracy recalled one case in which American soldiers on a foot patrol heard what later turned out to be celebratory gunshots from an Iraqi wedding. They opened fire and several Iraqi civilians were struck. "Clearly, that was not combat -- but because they thought they were under fire, the injuries that resulted could not be compensated under the Foreign Claims Act," he said.
Similar cases are described in 515 claim documents recently released by the Army in response to a Freedom of Information Act request by the American Civil Liberties Union. The vast majority, 413 of the 515 documents, are from 2005. The Army could not explain why only 47 cases from 2006 were released, and so few from 2003 and 2004, and none from 2007.
Nor could the Army's Claim Service say how many such claims were filed and how many were paid.
The earliest claim released was for an incident in April 2003, on behalf of a family of four killed when their house in Baghdad was destroyed in an airstrike. It was denied because of the combat exemption.
In a January 2005 incident, a U.S. tank opened fire on a university bus that was taking a short cut across an open field in Baghdad. The bus was destroyed and several passengers were killed, including the son of the Iraqi man who later asked for compensation. An Army captain who reviewed the incident called it a "horrible tragedy."
"Unfortunately, they were firing on a vehicle they viewed as a threat at the time," the Army officer wrote. "The claim is denied."
Condolence payments bypass such legal wrangling and are especially useful to soothe local tensions created by a nasty confrontation, experts say.
In Iraqi culture, "a man can't have his manhood back until he's achieved some form of revenge," Hammes said. "This gives him that back, an apology and expression of regret and responsibility. The more successful commanders do this."
In fact, it's not possible to assess the impact of this system, Army officials acknowledge.
As in the case of Foreign Claims Act payments, few records are released to the public. The Defense Department does not track numbers or trends. An investigation this summer by the Government Accountability Office, the congressional investigations agency, found that the U.S. reported handing out $21.5 million in condolence payments in 2005. In 2006, reported payments inexplicably dropped to $7.3 million. No data are available yet for 2007.
Maj. Scott Marihugh, an Army finance officer in Baghdad who oversees the program, said he has no reason to believe the payments this year have dropped as steeply as the numbers suggest.
Beyond the numbers, the very flexibility given to commanders to make condolence payments also can create an appearance of unfairness.
In one case, for example, a green Saturn carrying a husband, wife and child approached an American base at high speed. After firing warning shots to no avail, guards "engaged with killing bursts" of machine gun fire, according to the case file. All three Iraqis died. Although it was clearly a combat situation, a one-star general with the 3rd Infantry Division approved condolence pay of $2,500 for each death.
About the same time, in February 2005, a man brought a claim to the 3rd Infantry Division, saying that his brother was driving in Baghdad and got caught between two U.S. military convoys when shooting broke out. The man was killed, leaving six children, according to the brother, who sought $4,200 in compensation for the death and for the destruction of the car.
"Allow me to express my sympathy for your loss," wrote Army Capt. Christopher Glascott. "Your claim must be denied. ... Loss resulted from a combat operation."
david.wood@baltsun.com
The Army documents can be found at http:--www.aclu.org/natsec/foia/log.html
Excerpts from cases
Details from cases filed by Iraqis under the U.S. Foreign Claims Act in 2005. The documents were released under a Freedom of Information Act request by the American Civil Liberties Union.:
February 2005
CLAIM: A father of six was driving through Baghdad about 8 p.m., when he became sandwiched between two U.S. military convoys. Shots rang out; he was killed and his car destroyed. His brother asked for $4,200 in damages.
JUDGMENT: Denied. "Allow me to express my sympathy," a claims officer wrote. "Your claim is not compensable: Loss resulted from a combat operation."
CLAIM: A 16-year-old boy was walking past an American base in Baghdad with his school bag, which a soldier mistook for a bomb. The boy was shot and killed.
JUDGMENT: Denied. "Claim was a result of Combat Operations."
April 2005
CLAIM: A man was walking in Fallujah with his wife, who was carrying their 18-month-old son, when a U.S. aircraft fired, killing the baby and wounding the wife. "Since that time no one help," the father wrote, asking for $10,000 damages.
JUDGMENT: Denied. "The claimant provided no evidence that the U.S. committed a negligent or wrongful act."
October 2005
CLAIM: Two boys, 10 and 12, were walking home with groceries. Approaching a U.S. checkpoint, they took off and waved their white undershirts as a sign of peace. They were shot and killed. Their father asked $6,000 damages.
JUDGMENT: Denied. "There is not enough evidence to prove your claim."
November 2005
CLAIM: A boy on his way to school near Tikrit was waiting for a taxi near a U.S. military checkpoint when he was shot and fatally wounded by a passing American convoy. His father asked for $2,500 in damages.
JUDGMENT: Denied. A U.S. Army investigation found the U.S. "convoy did not render medical assistance" and left the scene. The boy bled to death before medical help arrived. The Army said U.S. troops were "firing in self defense in response to what they thought was a possible ... attack." One month later, a senior U.S. officer approved a condolence payment to the boy's father of $2,500.