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First public disclosure!

LCpl. Justin L. Sharratt Article 32 testimony:

Barak Salmoni: witness for the defense

Day One / Monday, June 11, 2007

The Article 32 investigation was called to order at 1425, 11 June 2007.

IO: This hearing is called back to order. Mr. Culp, you may call your next witness.

CC[Mr. Culp]: Yes, sir. The defense calls Dr. Barak Salmoni.

Dr. Barak Salmoni, a civilian, was called as a witness by the defense, was sworn, and testified as follows:

DIRECT EXAMINATION

Questions by Major Erickson:

Q. Could you please state your full name and spell your last, including your title, sir?

A. Dr. Barak Salmoni, Deputy Director Marine Corps Center for Advance Operational Cultural Learning. Last name is spelled S-A-L-M-O-N-I.

Questions by Mr. Culp:

Q. Dr. Salmoni, unfortunately, the judge doesn't have your CV. Could you please just tell him what you do?

A. Sure. Like I said, I am the Deputy Director of the Marine Corps Center for Advance Operational Cultural Learning. It is a section of the Marine Corps Training and Education Command. We provide full spectrum training to every deploying Marine to Iraq, as well as other AOs. We also provide full spectrum of schooling in all of the PME schools from sergeant up through MCWAR as a matter of fact. I engage in directing a team of cultural instructors and researchers on multiple areas of operation. I also engaged in teaching and research myself at those levels to involve site visits, OCOUNUS, when appropriate. My background is academically trained. I have a doctorate in Middle Eastern studies and I studied that region as well as Islam throughout my career.

Q. Dr. Salmoni, you got a chance to listen to the testimony from the translator that attended to interviews in Haditha in January of 2007. Just a few questions. The notion that a person's name and where they live being conclusively indicative of the fact that they areMuslim, what is the -- how accurate is that statement?

A. Broadly speaking, it is accurate. One can, with relative ease, tell in Arabic if someone is Muslim or non-Muslim based upon --

The Article 32 was interrupted by an incoming phone call. The phone call was terminated.

WIT[Dr. Salmoni]: Broadly speaking, it is possible to tell because there are names associated with historical Muslims that Muslims have today that a Christian simply wouldn't have. Likewise, particularly in places like Iraq or Saudi Arabia, there are tribal tales on someone's name that by in large tell you whether or not that person is Muslim. It may not tell you whether or not they are Sunni or Shiite but it will tell you if they are Muslim. I will add however, in the past two years in Iraq because of the sectarian violence, that Christians have been taking on Muslim names; Sunni's have been taking on Sheikh names and Shiites have been taken on Sunni names depending upon where they live so that they can pass for something for their own personal safety reasons. This is documented.

Q. Closely related to that question is the concept that women -- because he spoke in very broad terms, the interpreter, the concept of women Iraqi Muslim swears, notwithstanding there is no -- there is no statement about God and there is no Koran, that in the back of their mind it is generally accepted that they are swearing to God or to Allah. How accurate is this?

A. I think that is more personal opinion. And I think culturally it would have to do more with the level of either religious or secular education of that individual person and the extent of piety that they practice in their lives. So I don't see a direct connection between someone saying they will swear and it being in the back of their mind that that is, by necessity, swearing by Allah, by God.

Q. Is there such a thing, such a phrase, you understand in English we say "and so help me God"? Is there a normative phrase that evokes Allah's name and the Muslim tradition?

A. There are several formulated phrases that Muslims use to indicate the veracity or I am worth believing in of what they are about to say. For example, In the name of God, Most Merciful and Compassionate. I can say those phrases in Arabic if you'd like. It is one of the opening phrases of the Koran as a matter of fact. And in more pious households, this is what people begin most of what they say with.

Q. So what you are saying is it is traditional in the judicial setting, talking about giving a sworn statement in a criminal case, what would be traditional or accepted or expected by a Muslim person if they were giving sworn testimony in the Muslim tradition?

A. My familiarity is that sworn testimony occurs in a courthouse, if not the court chamber in a courthouse. Sworn testimony occurs in the presence of either an Iraqi legal system investigating judge or a Muslim court's judge. And it is usually done with the formula stated over the Koran.

Q. Would an Iraqi Muslim give sworn testimony outside of the courtroom or courthouse or would a judicial person come to their location?

A. I can't speak for the latter, whether or not a judicial person would come to their location. But my understanding is that very different from our system of law, the Iraqis have less -- the Iraqi lawyers outside of the police have less liberties and rights than do the police or do the judges. So my understanding is that what happens in the court in front of a judge does have swearing value. Investigating police don't have the same kind of sworn testimony opportunities. They can't take it in the same way that a judge can in court.

Q. Culturally, are all swears alike?

A. I would say globally, no, to include Iraq.

Q. I would like to talk to you about -- it is understood that Iraqi -- would an Iraqi Muslim understand that there is no penalty to the swearing if made to a foreigner?

A. Well, it is difficult to or it is important to avoid generalizations here.

Q. Of course.

A. In every religion I'm familiar with and I also hold degrees in Judaic studies and I've studied Medieval Christianity as well as modern Christianity. In every religion I've encountered, there is a double standard that people, for those who believe not only in the faith but the ideology of their religion, there is a lesser level of importance attach to the nature of communication with people outside of your group. This is true tribally as well. As this is true nationally as well across the globe. So there is the possibility that the level of moral compulsion to tell the truth to someone who is obviously wearing the uniform of a foreign occupying military, someone who is clearly not Muslim and clearly not an officer of the local legitimate court system, that moral compulsion would not be nearly the same if certain conditions were met.

Q. Now we are talking about conditions that would be the appropriate setting to exercise moral compulsion or truthful testimony?

A. Yes. I would say particularly in this very sensitive circumstance that there are measures that could be taken to increase an individual Iraqi's sense of internal moral compulsion to tell the truth and these steps were not taken.

Q. Can you please tell the judge what they are?

A. I would suggest that though some Muslims may feel that when they swear with no reference to God whatsoever that they actually do mean God. Though some Muslims may think that, in this case, given the sensitive nature of it, given the involvement of Americans and as non-Muslim Americans in the lead of the investigation, and that the entire prosecution will occur in the United States and that there is no reputation or prestige price tag for not telling the truth, we have to take certain measures. I would suggest the presence of the Koran is important. I would suggest, at the minimum, the presence of legitimate officers of the Iraqi, not military, but police. Or legitimately viewed officers of the Iraqi court be present. I would also suggest that both the interviewer, who cannot -- or the testimony taker who cannot avoid appearing foreign, as well as the interpreter, establish a rapport over several weeks with the witnesses. As we train our Marines nothing gets done without the establishment of rapport in relationship. It is not my sense that that occurred here.

So in addition to swearing over the Koran, in addition to the presence of people who are viewed locally as legitimate representatives of Iraqi and Muslim law, that could have been done as well.

I would also say that in this particular culture because prestige and the desire to avoid public shame, the inclusion of members from the accused's side, in this case the defense team, would have exercised more moral compulsion on the Iraqi witnesses.

Additionally, there is a question about the worth of testimony of females, not in our society, but in traditional Muslim societies, and this is documented, the testimony of an individual female is worth half that of a male.

There are also different views about when a boy becomes a man and when a boy undertakes certain things, the scriptures of moral compulsion on him are not the same as those of a man.

Additionally, I would simply add that the presence of a video camera adds a level of irregularity and that, in addition to everything that I mentioned, raises concerns about the internal moral compulsion, culturally and religiously, that was in evidence at the time.

CC[Mr. Culp]: Sir, I have no further questions for this witness.

IO: Major Erickson?

TC[Maj Erickson]: Yes, sir.

CROSS-EXAMINATION

Questions by Major Erickson:

Q. Dr. Salmoni, we had an opportunity to talk a couple weeks ago; is that correct?

A. That is true.

Q. And I asked you then if you had reviewed or seen any of the video tapes with the witnesses in question here today, the Iraqi witnesses, and you said "no." Has that changed?

A. I have not been provided an opportunity to do so.

Q. Have you had an opportunity to look at the transcripts of those interviews?

A. I have not been provided an opportunity to do so, neither had the translator.

Q. But you didn't either; right? You didn't see the transcripts, you didn't read them?

A. That is a roger.

Q. And you didn't look at the videos either?

A. That is correct.

Q. So your opinion here today is just a general opinion as it relates to Iraqi culture?

A. That is true.

Q. It is not based on any personal knowledge of the witnesses?

A. It is not based on any personal knowledge of the witnesses; however, it is based on experiences in Iraq, to include working with Iraqi police and military.

Q. But you never met these witnesses?

A. That is correct.

Q. And you never been to Haditha, Iraq?

A. That is correct. Although, I have worked with Marines who have been there during deployments, successive deployments, going back to 2004 when 3d Battalion, 4th Marines was in the area at the beginning of OIF-1, upthrough the deployment of 3rd Battalion, 25th Marines which preceded 3/1 if I am correct.

Q. Doctor, I am not going to question your expertise in this area. That is not my purpose. But I want to find out your foundational basis for your opinions when it comes to Iraq. How many times have you been to Iraq?

A. Three times.

Q. How long was the first visit?

A. The first visit began May 26, 2004 and then June 23, 2004.

Q. So about four weeks you were there?

A. Correct.

Q. How about the second visit?

A. The second visit, I don't have a firm beat on the exact dates, but it was about two weeks in August of 2005, mostly in the Fallujah area working with the ISF.

Q. And then your third visit?

A. It was in October through early November of 2006 I would say for about two weeks on the TQ, Hamdaniyah, Fallujaharea working with the 1st Iraqi Army Division, 7th Iraqi Army Division.

Q. Now you were talking about some things that would make you tend to think that their moral compulsion would have been, you know, moral compulsion has been energized in each of these witnesses. And one of them was a lot of times they would say something as to the first line in the Koran and you cited it perfectly. I couldn't bear to do that. But if you could do that again for me?

A. Bismillahi rahman ir-rahim, In the Name of God, the most Merciful and Compassionate.

Q. Now if the witnesses, instead of saying that said "God willing," would that change your opinion at all?

A. God willing is one of the most culturally burdened terms in existence. And by the way, it is not a Muslim term. It's a term used by all Arabic, Turkish and Persian speakers regardless of their religious background. Jews say it; Christians say it; anybody who is in that linguistic realm, in-shalla means many things. It could mean if God wills it sincerely. It can mean I really can't guarantee anything because there are so many things that can get in between me and showing up on time or this thing actually happening that I am just going to cover my bases by saying God willing. It has often been used to tell you politely that it's not going to happen but I am being polite. I don't want to tell you no.

Q. Okay. That is fair. Now what about with regards to these witnesses, the fact that they said "God willing" during a swearing of an oath?

A. Well, I would like to actually hear the video of that process or see the transcripts in sequence of what was said prior to the beginning of the actual taking of testimony.

IO: Okay. Let's make that happen. I got the DVD. Let's have him watch it enough to talk about theories. All right. We will take a break and let's set that up.

The Article 32 investigation recessed at 1441, 11 June 2007. 1441

The Article 32 investigation was called to order at 1454, 11 June 2007. 1454

IO: This hearing is called back to order. During the break, Dr. Salmoni, did you have an opportunity to look at those video tapes?

WIT[Dr. Salmoni]: Yes. I did.

IO: Major Erickson, you may continue.

Questions by Major Erickson continued:

Q. Sir, before we broke we were discussing some foundational issues and we broke and you have had an opportunity to look at the video. Could you please tell the IO, briefly, what you saw in each of the four videos with regards to the oath?

A. Sure. First, I can tell you that the oath came out in Arabic in over four sittings in three different ways. Mostly synonymous in Arabic, but not the same formula administered as the oath. That's interesting.

Second, no reference to God whatsoever in the Arabic on the part either of the interpreter, Amir Alkasey or on the part of the Iraqis who were actually saying the oath. There was a question about the young boy, who appeared nervous, that I wondered if in the drop of his voice he actually mentioned Allah. I listened to it several times. My assessment was, no, based upon what I heard and based upon the sense that it wouldn't make grammatical sense to put it where the voice went out a bit.

So no reference to God. And the oath was administered in three different Arabic formulas to four people.

Q. Sir, are you an expert on Iraqi law?

A. Negative. I am not an expert on Iraqi law. My expertise is on the cultural environment of the Middle East and of Iraq and how Iraqis have coped with violence during the insurgency and the aftermath of Saddam's rule. I do have a degree in Islamic and Middle Eastern studies in addition to a doctorate in Middle Eastern studies.

Q. Are you familiar with American law?

A. I am less familiar with American law than I am with the Sharia, Islamic law. I obey it.

Q. Which means you took an oath here today; right?

A. Yes, I did.

Q. Now do you know the nature of the oath in American law?

A. The nature of the oath in American law, I will not assume so you should inform me.

Q. Well, I just wondered if you are familiar with it. Do you know that it is suppose to awaken some sort of consciousness in the person that took the oath?

A. I think that has to do more with the individual because my assumption would be the immediate knowledge is that there would be legal repercussions for telling the truth or not.

Q. But it would have to do with the individual is what you are saying?

A. I think so.

Q. So the obligation to tell the truth or the understanding of an oath lies with the individual?

A. I think it lies with a combination of the individual's desires and what makes sense in that environment. That is why we administer the oath in a certain place in a certain way here today.

Q. Doctor, and I am going to show you Investigative Exhibit 39 and I would like you to turn to page 17 of that exhibit. About half way -- first of all, go ahead and look at the front page so you know exactly whose interview that is?

A. This is Khalaia Jamal Aayed Ahmad.

Q. And you saw him briefly in the video that you just looked at just a few minutes ago and that was the boy.

A. Yes.

Q. So if you go to page 17 in regards to IE-39, and if you see the first Q on the page, do you see the first Q there?

A. Yes.

Q. Do you see that question? Did anyone go with you to uncle Yusuf's house?

A. I am assuming that I'm not reading very well because on page -- I see. They have been numbered two different ways.

Q. I apologize. It should say Investigative Exhibit 39 page 17 of 21.

A. Okay. "Did anyone go with you to uncle Yusuf's house?"

Q. Will you read the reply?

A. "No, to be exact because you know I swore so my brother was with me."

Q. My mother was with me?

A. Yeah. My mother was with me.

Q. Does that seem to you like an indication that he knew that he swore to tell the truth?

A. Restate the question?

Q. Is that an indication that Khalaia knew that he swore to tell the truth?

A. It seems like an indication that he knows that he swore before you, yes.

Q. Thank you, doctor. And I just want to be clear, you are not suggesting that today in your testimony, and I don't want to put words in your mouth and I don't want to be inflammatory either and I got to be very careful here when I state this.

You are not suggesting that maybe the women, the three women who were given an interview by myself that they should be given half the creditability that a male witness would have?

A. I am saying traditionally in Islamic law and I think even in the modern Iraqi court system because the modern Middle Eastern court systems do implement aspects of Islamic law. Traditionally, the weight or the worth of a woman was half of that as a male. That is what I am saying.

Q. But that doesn't mean that these particular woman were half as truthful as a man?

A. I am not saying that they are half as truthful as man maybe. They may be less familiar and less significance intheir testimony. That is all I am saying.

EXAMINATION BY THE INVESTIGATING OFFICER

Questions by the investigating officer:

Q. Now, doctor, you went through and wrote down three different indicias that you would suggest to administering an oath to a person of the Muslim faith who testified in one of our courts. And one was the presence of the Koran. By that, do you mean having them play placing their hand on the Koran or having the Koran just in the courtroom?

A. Having the Koran visibly, proximitus, near to the person who is swearing; putting the hand on it, often the person who is administering the oath will hold it in the sense and give it to the person saying the oath. It is a little different from how we do business.

Q. So that would be one cultural aspect that would impart on the witness that this is a more serious than a casual conversation?

A. That is correct.

Q. You said a legitimate officer of the military or of the court and you specified not the police?

A. My understanding is that -- let's leave the military out, but the police don't take sworn testimony. They can do investigations; they can do interviews. But the sworn testimony is taken by an investigating judge.

Q. Would a religious representative from that person's town be also a person that could substitute for having someone from an Iraqi military or court system?

A. I would try to do that, yes, as much as possible.

Q. And the third one, which is probably more problematic if one was to call these witness to testify, establishing a rapport over several weeks. Can that prong also be satisfied by having someone from that town or someone in authority from that town being present who would know that individual?

A. I would suggest that that should be done in any event. But nothing makes up for establishing the rapport, the comfort value. Both the interpreter and the Marines in this case were wearing Marine uniforms, which automatically identifies them as foreign, as powerful, as potentially violent.

Given the hundreds if not thousands of debriefs that we have done with Marines at all levels, what comes out over and over again is that you don't get anywhere. It's relationships first, the mission later.

Q. I guess my question then isn't so much focused on those transcripts and the video tapes as if a court was called these people to testify, what recommendations would you have that would be different from having them come in and raise your hand like you did today. And that is what I am trying to figure out. What is your recommendation? I have you here and that is one of the things that I have to consider.

A. My recommendation would be to integrate, such as it is, the Iraqi legal system such as it is, the Iraqi religious system, and use Imam prayer leader or a Muslim jurist from a local mosque which brings in the issue of family relationships which plays more than one way. But I would still use those culturally legitimate tools as well as Koran, perhaps even having the process occur in a mosque where there is tremendous moral compulsion already.

I'd mentioned one more thing if I may. A fully fluent in Arabic official U. S. person or a fully fluent in Arabic or with an interpreter official female U. S. person for the females.

Q. Now I am going to call upon your expertise in the middle east and culture. Iraq, prior to Saddam Hussein, was very westernized. Yet in relationship to Saudi Arabia, are you saying that they -- did they revert towards treating women as inferior in their court systems under Saddam's reign or was it something that they never progressed for women's rights?

A. With respect to -- I may not entirely concur with your assessment of the modernity in Iraq. Prior to Saddam coming to power from the later 60's, there had been attempts at what you and I would recognize as modernization. However, tribal law, the heavy input of Islam into the secular court system was present. After all, it had been merely ten years since the deposition of the monarchy. And the monarchy was more associated with Islam and traditionalism and otherwise.

Now it is true that from 1978 when Saddam took power as a whole, Iraq was a more secularized true country than as to the Gulf monarchies with higher rates of education and higher rates of education for woman. And the Baath party worked to liberate the woman as a symbol of its progressiveness.

After 1990, '91, Operation Desert Storm, however, the religion campaign, which Saddam instituted, the hamlaimaniyya was deliberately established to shore up his support for his regime giving more room to tribal law which is a melange of secular Sharia law and Islamic. And more room to the infiltration of Islam into every aspect of society; mosque, building campaigns, and into law as well.

So it is a mixed bag. Not to mention that throughout this region capital city governments have difficulty penetrating in terms of their social orders into the rural periphery. We now know that places like Fallujah, for example, were left off limits by Saddam because he knew it was difficult to get into. Haditha is part of that rural periphery.

Q. Again, I certainly haven't studied this area but does the Iraqi culture have a sense that it is improper to bear false witness? And I correspond that to anecdotal evidence that in Afghanistan that people would turn in their neighbors because there would be advantages to having neighbors removed and moving up. And you have sect divisions within Iraq. Is there that same kind of sense that you shouldn't bear false witness or is there a benefit to bearing false witness?

A. If I understand the Afghanistan example correctly, it wasn't that people felt bad about bearing false witness, that is not what you're saying if I understand you correctly.

Q. That if they got to gain from that?

A. I think you hit the nail right on the head. Places like Afghanistan, Iraq, post 1991 Yugoslavia, Haiti, Liberia, Sira Leon, these are all places where society is falling apart. And supreme virtue in those environments, no matter what the religious background is survival and benefit of the family. And everything else takes a backseat.

There are known cases, both in the Middle East as well as in South Asia, the Muslim environments where there are people who have, I wouldn't say make a career, but earn wages from standing outside of courts and selling their own testimony, either a character testimony about this guy is a good guy or selling their testimony about events.

Now I am not suggesting that happened here but is a known phenomenon. And it is also something that pious Muslims deplore. So it is not a broad culture phenomenon.

Q. Would there be any kind of cultural responsibility upon the family if the father was killed to seek vengeance or restitution?

A. Well, if I understand correctly, in this situation, they did know that the father is no longer alive. They did not know that the father is dead if I'm correct. And they did know that happened at the hands of coalition forces. So that urge for, you call it vengeance, in this cultural environment, I would call it justice, would be strong. Particularly, if you were at the end of the line of a rash of what you assumed to be related events if we are talking about house three and four.

IO: Counsel, have any questions in light of mine? Mr. Culp?

CC[Mr. Culp]: Sir, at this time I really do have one more.

IO: That's fine.

RECROSS-EXAMINATION

Questions by Mr. Culp:

Q. Dr. Salmoni, what if anything can you tell the judge about Iraqi conception of forensic science?

A. Sure. My knowledge on this is very limited. It is limited to my interaction with the Iraqi police in 2006, as well as my interactions with the Marine and Navy personnel at their regional detention facility forensics and processing lab at Camp Fallujah where I spent the day. They -- on the police side, they said that we have this quaint fascination with CAT scans and flourescent lights and we want to send things back to the United States to be evaluated, why don't we just evaluate it in the house where it happened. There is a certain skepticism.

Speaking to U. S. personnel, both official and contractors at the regional detention facility, they said that there was an insufficient trust. In American terms of forensic mumbo jumbo, as he put it, that there was suspicion because it was a technology that they hadn't had the opportunity to use.

Whereas, the Iraqi police were good, in this person's estimation, beat cop walkers. They knew how to do interviews. They knew how to do things like that. Forensics was something they hadn't had the opportunity to do so much. So they had suspicion of it.

IO: Major Erickson, any follow up?

TC[Maj Erickson]: No, sir.

IO: Now I am not sure if you will have any further involvement, will your schedule allow you to be called as a witness in any further proceedings for the next few months?

WIT[Dr. Salmoni]: With the exception of a deployment to CampTaji, which I can slide left or right.

IO: When is that anticipated that would happen?

WIT[Dr. Salmoni]: If it happens, July.

IO: Other than that, do you believe you will be available if you were asked to testify in any proceeding?

WIT[Dr. Salmoni]: That is correct.

IO: Thank you for your testimony. I'm going to ask you -- no, I'm not going to do that. You can talk about your testimony to anyone you want.

WIT[Dr. Salmoni]: Thank you.

__________________________

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