The Iraqi Criminal Justice System, an Introduction

Beginning of article

The purpose of this article is to serve as a brief introduction to the criminal justice system, such as it is, in Iraq today. It is based on my review of the Iraqi Criminal Procedure Code, (1) my discussions with a small number of individuals--both Iraqi and American--familiar with the system, and my own (admittedly-limited) observations of the system during a six-month military deployment to Baghdad. (2)

One might argue--as many U.S.-trained common-law attorneys do--that a criminal justice system that neither adheres to stare decisis nor atomizes crimes into "elements" can hardly provide true justice. An equally-plausible argument could be made that true justice cannot be achieved in a system that insists on having a defendant's fate decided by a lay peer jury with no legal training and that builds a complex network of evidentiary rules that restrict consideration of relevant and probative evidence. To a significant extent, one's determination of justice is based in large part on whether one finds justice in doing right by society (i.e., punishing the guilty despite any corruption or misconduct by the government investigators) or in doing right by the individual (letting an obviously-guilty person go free in order to "punish" the "system").

Although this philosophical dilemma partly prompted this article, it is beyond its scope. This article will not conduct a normative analysis of any particular legal system, nor does it propose to conduct a comparative analysis of the civil law trial-by-judge system such as it exists in Iraq and the common law trial-by-jury system used in criminal trials in the United States. Instead, the goal of this article is to step through the Iraqi criminal justice system writ large--as it is envisioned in the Iraqi Criminal Procedure Code and as I have seen it in practice.

I. IRAQI CRIMINAL JUSTICE SYSTEM--THE PLAYERS

During its short-lived tenure as the de facto Government of Iraq, the Coalition Provisional Authority (CPA) attempted a limited overhaul of the Iraqi criminal justice system. (3) One change was the creation of the Central Criminal Court of Iraq (CCCI); (4) a court with sweeping, nation-wide criminal jurisdiction (5) but a specific mandate to focus on terrorism, organized crime, corruption, and other serious cases. (6) Fortunately for the Iraqis, the CPA did not try to impose procedures or substantive law from common-law systems on the new court. Instead, the CCCI is configured and runs in the same way as the regular provincial criminal courts in Iraq. Each branch of the CCCI consists of an Investigative Court and a Felony (trial) Court. (7) The Court implements Iraqi substantive and procedural criminal law the same as other courts. (8) Appeals travel directly to the Court of Cassation. (9) The Iraqi Criminal Procedure Code thus applies to all cases processed through the CCCI, from arrest and detention through investigation, trial, and punishment. (10)

A. A Quick Comparison of Roles and Responsibilities

Regardless of the court in which the Code is being applied, it is important to understand a little about the players in order to understand the Code. Some writers have made the mistake of trying to compare a civil law trial-by-judge system with the common law trial-by-jury system used in criminal trials in the United States. (11) In the confines of an article such as this, to do any kind of satisfactory comparative analysis is impossible. However, by referencing the key benchmarks in both justice systems, it is easy enough to see that they both attempt to arrive at the same goals--public punishment of criminal offenders--albeit from different cultural and historical perspectives.

In the United States criminal justice system, the prosecutor is a personage of enormous power. The prosecutor is the one who reviews data collected by-the police (and who, to some extent, directs the type of information and evidence to be collected), who decides whether the evidence is sufficient to go forward, who formulates the nature and content of criminal charges, who controls the offer and acceptance of plea bargains, who decides the means and method by which incriminating evidence will be presented to the fact finder, and, finally, whose charisma and credibility are to some extent in play when lay peer juries are evaluating the sufficiency of the evidence. The prosecutor and police in our accusatorial system work together, often with considerable government resources at their disposal, to investigate allegations of criminal conduct. If they believe a crime has been committed, they then determine (i) who they believe should be held to account for the crime, (ii) in what forum and with what charges the alleged offender should be charged, and (iii) the substance and means of presenting the facts to a fact finder. (12) In this system, the judge's role is that of a gatekeeper, a referee who makes sure the charges are supported by reliable and relevant evidence. In the United States system, in which it is paradoxically almost impossible for a lawyer to sit on a jury of peers, the fact-finding panel is given only superficial legal guidance on the legal definitions and presumptions relevant to the particular case it is considering. The purpose of this practice seems to be a desire to ensure that the members are focused solely on the facts as they relate to the charge, rather than on any broad legal consequences of those facts.

In the Iraqi civil-law criminal justice system, the prosecutor and judge basically switch roles. The Iraqi prosecutor is very much an administrative official whose job is to review the case file for completeness, and to provide recommendations to the judges as they try the case and deliberate their findings. The judges (first the investigative judge, then the trial judges) take center stage--literally--as they run the criminal investigation, issue arrest warrants, interview witnesses, determine appropriate charges, weigh the evidence, issue findings, and pass sentences. Whereas the United States criminal justice systems intentionally separate the pre-trial investigation (in which the judge is only tangentially involved) from the trial process, Iraqi courts consider fact gathering to be an integral part of the judicial purview. Although there is obviously a role for some (even significant) data collection prior to the start of official criminal proceedings, the process--at least on paper--calls for the investigative judge (or his (13) own duly appointed judicial investigator) to repeat or confirm all critical facts in the case. While the prosecutor attends the trial (and even remains with the judges during their deliberations), his role is largely administrative in nature.

To an Iraqi lawyer (and likely the average Iraqi citizen on the street as well), the idea that an untrained member of the public could or should be involved in determining something so important as guilt or innocence in a criminal case is preposterous. Trial judges are the best and brightest of the legal profession and have significant training and experience prior to being appointed to the bench. The judges rightly consider themselves experts in knowing what the law says and, more importantly, what it means. (14)

It is a truism that the standard American lawyer answer to any legal question is "it depends"--because a slight change in the facts can often lead to significant changes in legal consequences. However, once all relevant facts have been determined, a lawyer can give a definitive answer based on the law as it stands at that time. Of course, the well-entrenched principle of judicial review allows American courts to decide that one or another social (non-legal) consideration should affect the outcome of the case.

Iraqi judges do not have such leeway. Their job is to apply the facts to the plain wording of the law. As such, the concept of following precedent is meaningless because it is irrelevant: an Iraqi judge is commissioned to determine whether the accused in a particular case violated the law vel non. (15) Looking to other cases will not tell us whether this accused is guilty or not. To paraphrase General David Petraeus' September 2007 interviews leading up to his testimony before Congress, the facts inform the law rather than drive it. (16)

This point is further driven home by the simple fact of the timing of the official charge. In the American court system, the accused is charged prior to trial proceedings. The entire focus of the prosecution case is directed toward the specific wording of the charge. On many occasions, the defense case is built around trying to defeat one or more elements of the specific charge rather than to completely deny responsibility for any criminality. In the Iraqi system, although an accused is certainly aware of the type of criminal incident for which he is being investigated, the official charge is almost anticlimactic as it comes at the end of the trial. This one procedural change obviates an accused's ability to structure a defense argument built around hypertechnical attacks on the verbiage of the charge and holding the government to what it thought it could prove. Instead, it puts the focus of the entire proceeding on a determination of the facts and their consequence under the law. The Iraqi judges spend their time trying to determine what, if anything happened. Only after ascertaining the facts (with or without counterargument by defense counsel (17)) are the Iraqi judges in a position to formally charge the accused. In Iraq, no one gets off on a technicality.

B. The Players--Qualification, Training, Appointment, and Tenure

All players in the Iraqi criminal justice system are trained professionals. Although there appear to be no special training requirements for defense lawyers (whether appointed or retained), other than graduation from law school, (18) Iraqi law imposes specific requirements on all prosecutors and judges involved in the investigation and trial of accused criminals. (19)

1. The Police

As with American society, the "face" of the criminal justice system that is most familiar to the average Iraqi is the police officer. Civilian police officers--members of the Iraqi Police or the Iraqi National Police, both of which fall under the Ministry of Interior (MOI)--patrol the streets, act as first responders, and conduct the initial (perfunctory) crime scene investigations. Together with the Iraqi military, the police units were a major focus of intense rebuilding efforts and training efforts following the U.S.-led occupation in 2003, most notably from the Civilian Police Assistance Training Team (CPATT), a subdivision of Multi-National Security Transition Command-Iraq (MNSTC-I). (20) International police-training teams have been working closely with new recruits to accomplish the goal of a competent and corruption-free force. One of the primary training facilities for the Iraqi Police is the Baghdad Police College located in Rusafa, a neighborhood wedged along the east side of the Tigris River between Baghdad proper and Sadr City. (21)

The original curriculum at the Police College was a three-year course of study covering such diverse topics as the Penal Code, constitutional law, economics, languages (Kurdish, English, and Persian), first aid, fingerprinting and criminal photography, weapons training, horsemanship, criminal sociology, Islamic law, and forensic medicine. (22) Candidates for the Police College must be young, healthy, upstanding Iraqi citizens. (23) As it turns out, the Police College is an interesting cultural experiment in and of itself-bringing Shia and Sunni cadets together in an environment where they have to learn to rely on each other.

2. Judicial Investigators

In addition to police detectives and investigators, there are groups of "judicial investigators" who are lawyers working directly for the investigative judges. Their duty is to investigate the crime scene in the absence of the investigative judge and to conduct any other inquiries directed by the investigative judge. (24)

3. The Public Prosecutor and the Judges

With a few special exceptions, all prosecutors and judges are graduates of the Judicial Institute, (25) a two-year specialized course designed to raise the "efficiency" of those who desire to enter the public judiciary. (26) To be eligible for acceptance, one must obviously be a lawyer, and one must demonstrate a solid background and good credentials. (27)

The actual application process for the Judicial Institute apparently involves three steps: a general written test in knowledge of the law, an oral exam in the form of an interview by a panel of five judges/prosecutors, and--most importantly--an "appearance" test, which is a separate interview by a panel of five judges/prosecutors to determine if the candidate looks, talks, and acts like a judge. An unwritten requirement, which can be a showstopper, is one's judicial pedigree--coming from the right family and having ties to the right influential people. (28)

The curriculum at the Judicial Institute mirrors subjects covered in law school, (29) but the courses are taught by experienced lawyers and former judges who discuss the practical application of the law. (30) At the end of the first year of studies, the top students are placed in a judgeship track while the rest continue in a public prosecutor track. (31) Thus, lawyers identified as future judges and future prosecutors train side by side.

To be eligible for appointment as a judge in the courts of Iraq, one must be Iraqi by birth, married, and a graduate of the Judicial Institute. (32) The original oath of office read as follows:

   I swear by god that I shall judge among people with justice and
   apply the Laws honestly with what comply with their goals in
   building the united democratic socialist society. (33)

Judges are eligible for promotion every five years. (34) Their rise through the ranks of four pay grades (from "Fourth Class" or "Grade D" up to "First Class" or "Grade A" (35)) determines, in addition to salary raises, their eligibility for specific postings (from regional offices to the more exclusive positions in Baghdad, as well as from investigative to trial judge). Thus, only the more senior members of the judiciary are eligible for trial and appellate judgeships and other positions of importance. (36) Judges may continue to serve until mandatory retirement at age sixty-three (37) unless removed involuntarily after receiving two poor performance reports while in the same grade or if deemed incompetent. (38)

Prosecutors are to be pillars of uprightness. (39) More specifically, the role of the Public Prosecutor is to be a check on judicial overbearance and to ensure justice throughout the criminal justice system. Thus, they are specifically tasked with a wide and varied set of responsibilities:

* Review and opine on proposed judicial actions (1) transferring a case to trial, (2) ordering collection of body fluids, hair samples, or fingerprints, and (3) attaching property of a fugitive or accused; (40)

* Oversee cases originating by action of a criminal complainant; (41)

* Inspect detention centers; (42)

* Review all death penalty cases before submission to the Court of Cassation; and (43)

* Attend investigative hearings as well as trials, cross-examine, and advise the judges on the disposition of a case. (44)

The career path of prosecutors mirrors that of judges. Thus, as with judges, a prosecutor must be Iraqi by birth, married, and a graduate of the Judicial Institute. (45) They take a similar oath. (46) They are eligible for promotion every five years. (47) Furthermore, they, too, rise through four pay-grade levels, and their salary structure appears to be identical to that of judges. (48) Finally, they are subject to mandatory retirement with pension at age sixty-three. (49)

II. IRAQI CRIMINAL JUSTICE SYSTEM--THE PROCESS

Unlike the United States' criminal justice process, where informal fact-gathering in preparation for the formal (accusatorial) trial process is largely done outside the realm of the disinterested judicial branch of government, the Iraqi penal system--structured similarly to the Egyptian and continental civil law models--considers the investigatory, fact-gathering phase as the actual first step in its formal (inquisitorial) trial process. (50) Although there is obviously a role for some (even significant) data collection prior to the start of judicial involvement, the process--at least on paper--calls for the investigative judge (IJ) (or his own staff "judicial investigator") to repeat or confirm all critical facts in the case.

The remainder of this article will set out both the black-letter law from the Iraqi Criminal Procedure Code and the way I observed it in practice--with the caveat that my exposure to the process was meager at best and limited to small portions of Baghdad.

A. The Initial Investigation

The initial investigation includes all government-led pre-trial actions taken in response to a discovery or report of a crime. Criminal cases in Iraq, as in the United States, begin either when the police arrest a suspect or when an individual presses charges. (51) A complaint can be instigated by an injured party, his representative, or a government official in the judicial system. (52) Because crimes are essentially torts where the state sues on behalf of the victim (and society at large), the Iraqi system melds any private tort cause of action with the public prosecution. The criminal complaint is thus not only a claim for criminal justice and request that punitive action be taken against a perpetrator, but it includes the concomitant civil action as well. (53)

Some complaints must be filed by the victim alone, (54) but other individuals can provide information on a criminal case--such as eyewitnesses, (55) persons who encounter evidence of a crime, (56) police officers, (57) and certain professionals designated as mandatory reporters, including public servants and medical professionals. (58)

Once a complaint has been filed or a case opened, it has a life of its own. It cannot be withdrawn; nor can execution of the judgment be stopped (59)--not even in the event of the death of the complainant. (60)

In theory, the investigative process appears redundant. The Code identifies at least three types of investigating officials--crime scene investigating officers, (61) judicial investigators (sometimes simply called "investigators"), (62) and the investigative judge (IJ) himself. Regardless of their organizational affiliation, the on-scene investigating officers, when acting in that capacity, report directly to the Public Prosecutor's Office. (63) However, if they are derelict in their duties, they answer directly to the IJ. (64) These first responders conduct an initial round of data collection (65) before reporting the matter to the IJ or the Public Prosecutor's Office. (66)

The investigating officer's duty is to "go immediately" to the situs of the crime and proceed to take statements (including from the alleged perpetrator), collect evidence, and make inquiries. (67) They have authority to "forbid" the movement of witnesses/personnel at the scene and to issue summonses for the appearance of other necessary witnesses, but they apparently do not have enforcement authority; (68) instead, they simply note any refusal to cooperate in their official record of the case. (69) This investigation is preliminary to the official investigation conducted by the IJ or the IJ's own judicial investigator: the investigating officers merely pass all information and evidence received (there are no specific chain-of-custody requirements (70)), including their own narrative report of their investigative actions, to the court authorities as part of the case file. (71)

B. The Initial Investigation, Some Observations

Following the 2003 U.S.-led occupation of Iraq, and the subsequent violent backlash from the various groups hostile to Coalition operations, the security situation worsened to the point that traditional police could not conduct criminal investigations as they had done previously during the relatively secure environment managed by the Saddam regime. (72) Thus, for several years, the civilian police--through lack of training and resources, were unable to perform their regular crime-prevention and crime-investigation roles. This responsibility thus fell to various Coalition groups who conducted patrols either on their own or as training missions for Iraqi forces. (73) Given the high level of violence, it simply was not feasible, in most instances, for first responders to cordon off a crime scene and collect forensic evidence--even if they had been so inclined. Furthermore, during the heady days of the 2007 surge, most arrests were of terrorism suspects--many of whom were treated as security internees rather than as criminal detainees. (74)

C. Pretrial Investigation--The Initial Judicial Phase

Once the police or other investigating officer has concluded the initial fact-gathering phase and turned over all reports, statements, and evidence, the investigative judge takes over the case. The Code anticipates that the IJ's investigation will occur in two phases. The first phase is an "initial" investigation of the crime scene and related environs (75) in which the IJ travels about--even outside his geographical jurisdiction, if necessary--making arrests, conducting searches, and collecting evidence. (76) The second phase of the investigation is a formal hearing conducted in the IJ's offices. (77)

The purpose of the IJ's investigation is to create a dossier, which will be used as the official record during the trial. (78) In a very real sense, the IJ is the quintessential finder of fact because testimony at trial--if there is any at all (79)--is often a formality, merely confirming the facts already established by the IJ. As such, this pretrial investigation may have more bearing on establishing the ultimate fate of the accused than does the trial itself.

In establishing the facts of the case, the IJ holds almost unlimited authority--over the scope of the inquiry, the format and substance of testimony, the witnesses, and even public access to the proceedings. Thus, for example, other than individuals specifically authorized by the IJ to attend the hearing, only the accused and the plaintiff (victim) are allowed in the room--and even they may be excluded by the IJ for good cause shown. (80)

The closed nature of the hearing obviously does not extend to necessary fact witnesses. In fact, although there is provision for collection and consideration of "hard" evidence, Iraqi criminal procedure writ large is clearly slanted in favor of witness testimony--and lots of it. In an interesting chicken-and-egg phenomenon, Iraqi praxis and the Code have both evolved to disfavor consideration of forensic or other non-testimonial evidence. (81) It is true that the Code does provide for appointment of expert witnesses (who obviously work for the court, not for the prosecution or defense), (82) and authorizes the IJ to collect (83) forensic evidence (from both accused and victim) (84) and to conduct exhumations. (85) However, the primacy of testimony is firmly entrenched: the first order of business during the formal investigation is a thoroughgoing exposition of facts by the complainant and victim. (86)

So compelling is the preference for witness testimony that, while the rules regarding physical evidence are minimal or hardly referenced in the Code, the details regarding calling of witnesses are extensive. Witnesses can be summoned to appear and testify under penalty of arrest for contempt. (87) More importantly for the accused, although there is a right against self-incrimination, (88) the protection is not without its limits (either in theory or in practice) given the significance laid on in-court confessions. (89) For example, spousal communications are the only recognized category of privilege, but the privilege is not absolute. (90) All of-age witnesses questioned during the hearing speak "on oath." (91) They must identify their relationship to the accused, the victim, and the complainant. (92) Pains are taken to accommodate the live testimony of witnesses, to include the use of memory aids, sign language, and translators. (93) Each witness' statement must be reduced to writing and witnesses may be recalled to clarify previous testimony. (94) The preference for a live witness is so strong that the Code provides for payment of witness travel costs (95) and instructs the IJ to travel to the witness' location if necessary to procure live testimony. (96) On the other hand, once a witness is under examination, the IJ controls the nature, substance, and delivery of all questions propounded to the witness. (97) Furthermore, equal in importance to the substance of the witness' testimony (98) is the IJ's assessment of the witness' credibility. (99)

Most interestingly, oral testimony is not presented seriatim in the type of individual-witness question-and-answer format used in American courts; rather, witness testimony is more conversational (albeit potentially confrontational). (100) The conversational nature of the testimony goes beyond a witness' own observations of fact--to include observations about other evidence and even asking or suggesting that other witnesses be summoned. (101) The only real limits on witness testimony are that (1) all questions must be vetted through the IJ, and (2) a witness' statement can be curtailed if it is irrelevant or offensive. (102)

Throughout this process, an accused is, of course, entitled to representation by a retained or appointed defense attorney. (103) However, the Code does not identify any specific role the defense bar is to play.

The IJ's role in the judicial process ends in one of three ways: he dismisses the case with prejudice, (104) he closes the case temporarily due to lack of evidence or because the perpetrator cannot be identified (or, interestingly, because the incident was an act of God), (105) or he finds sufficient evidence that a crime has been committed and that this accused committed the crime--in which case he binds the accused over for trial. (106) The IJ prepares a formal dossier with summaries of all witness testimony and the statement of the accused, as well as an executive summary describing the relevant details of the case. (107)

D. Pretrial Investigation--The Initial Judicial Phase, As Observed

Each opportunity I had to witness an Iraqi court proceeding (108) created lasting impressions. First, was the indelicate ballet of shuffling prisoners--marched from buses to holding cells, then to the IJ's chambers--dressed in sandals and brightly-colored jumpers. In the morning, there would be a line marching into the building, the continuity broken occasionally by an amputee hobbling in on crutches or being carried in by his fellow detainees. Their overseers orchestrated their movements at every phase--first to the dusty holding cells, then to the internal hallways adjacent to the IJs' chambers to await the calling of their case. The courthouse almost had an atmosphere of a crowded marketplace. When their case was called, they would be ushered into the office. The IJ would sit at his large desk, which was situated in such a way that it was obvious to all present that this was his show.

The Al Karkh facility processed all criminal cases investigated and presented by Task Force 134, the Coalition unit tasked with processing persons captured by MNF-I forces. An initial review process determined whether the MNF-I detainees should be released to the Iraqi criminal justice process or held indefinitely as Coalition security internees--either because they were a potential source of ongoing actionable intelligence or because they were deemed a persistent threat, but there was insufficient releasable (unclassified) information to use against them in a criminal prosecution. (109) Those released to Iraqi authorities were processed in the new CCCI court system, with Iraqi judges applying Iraqi law.

The investigative hearing was an intimate setting. It was rare to have more than seven or eight people in the room, including the I J, his recorder (judicial investigator?), the accused, the prosecutor (usually played by a U.S. military lawyer), a defense counsel, a translator or two for the U.S. military members present, a few witnesses--usually U.S. military members who had arrested the individual while on patrol--and maybe an observer or two (like me). Only on rare occasions did the defense counsel say a word during the entire hearing. Whereas one (male) Iraqi witness might be considered sufficient to establish a case ready to move forward (providing the accused confessed (110)), it was understood (maybe even a policy) that Iraqi IJs would not accept the testimony of just one U.S. military witness in any case--no matter how many photographs, diagrams, or other pieces of evidence there might be.

Task Force 134 apparently had a working relationship with the Public Prosecutor's Office at CCCI whereby military attorneys were deputized as "Special Prosecutors", (111) although they were obviously not Prosecutors under Iraqi law--not having been to the Judicial Institute nor falling under the Office of Public Prosecution. Although the Code does not really envision any participation by the Public Prosecutor during the investigative phase, (112) the Prosecutor does, nevertheless, have an institutional interest in monitoring developments in each case to ensure compliance with law and procedure. It was my experience that the military attorneys' participation was limited to preparing military witnesses for the hearing and accommodating their presence. It was rare that the attorneys were allowed to question a witness directly. Instead, depending on the indulgence of the IJ, they often had to request or suggest that the judge question the accused on a certain point to try to bring out some fact the attorney considered relevant. The judge might ask the question just as the attorney had suggested, he might reword it, or he might not ask it at all.

To me, the most striking aspect of the investigative hearing was that the dossier prepared and submitted by the IJ did not seem to contain any primary evidence. (113) Instead, the IJ would dictate a summary of each witness' testimony, as well as a review of all diagrams and photographs mentioned during the hearing. The IJ's recorder (perhaps his judicial investigator?) would sit at the comer of his desk and transcribe his dictation in longhand onto blank sheets of paper--making a simultaneous file copy by use of carbon paper slid between two sheets of paper held by a binder clip (reportedly an Iraqi practice in all walks of life). It was this handwritten dictation that became the case file forwarded to the trial court.

The Iraqi judiciary apparently has a saying that "the confession is the master of evidence." (114) The IJ's true power is most poignant in the surprisingly-large majority of cases where there is a confession. On the one hand, confessions were transcribed in the same quotidian way as the IJ's executive overview of the entire case and other witness statements. On the other hand, it was in fact the IJ's terminology, not the accused's, that was ultimately adopted as the confession. I witnessed more than one IJ dictate his version of the confession and even get in sidebars--sometimes involving some amount of obvious disagreement--with the accused over just how the facts should be portrayed. In the end, the accused would adopt the statement and affix to it his mark or signature.

The foregoing practice was in sharp contrast to the level of acceptance by the IJ and trial judges alike with respect to extrajudicial confessions. Even though the Coalition forces had an extensive training program to ensure that their police patrols thoroughly documented the crime scene with photographs, diagrams, and tape recordings, (115) the judges appear chary of accepting any confessions made to the police/military agents who effected the arrest. The judges feel a strong need to witness the confession themselves (and perhaps to massage it in their own verbiage). Accordingly, such out-of-court confessions typically hold little to no weight.

E. Special Issues Under the Code

The Iraqi Criminal Procedure Code addresses a variety of issues that are not part of the investigation and trial process per se, but have significant bearing on them.

1. Searches and Seizures (116)

The rules regarding searches of persons or places are not unlike American Fourth Amendment jurisprudence. (117) For example, although government officials looking for evidence of a crime may not search a person or place without prior authorization, (118) the IJ's authority in ordering searches is quite broad. (119)

As in other areas of the law, the legal standard for the investigative judge is hazy: he simply must have reason (probable cause?) to believe that useful evidence will be found which will shed light on the investigation. (120) If necessary, authorities may use force to effectuate a search. (121) On the other hand, despite a seeming lack of standards regarding the level of suspicion required to justify a search, searches are theoretically conducted under the aegis of an investigative judge. Thus, although there are no legal standards set forth in …