ABUSE CASES =========== <1> ABU GHRAIB <2> BAGRAM AFB <3> OTHER CASES <4> STORIES <5> SOURCES ================================================================================ <1> ABU GHRAIB SUMMARY: * Pfc. Lynndie England [ pending ] * Sgt. Javal Davis 6 months, reduction to E1, bad-conduct discharge. * Spc. Sabrina Harman 6 months, bad conduct discharge. * Spc. Charles A. Graner, Jr. 10 years, reduction to E1, loss of pay, dishonorable discharge. * Spc. Megan Ambuhl reduction to E1, loss of a half-month’s pay. * Spc. Armin J. Cruz 8 months, reduction to E1, bad conduct discharge. * Staff Sgt. Ivan Frederick 8 years, reduction to E1, loss of pay, dishonorable discharge. * Spc. Jeremy C. Sivits 1 year, reduction to E1, bad conduct discharge. * QUOTES: * Sgt. Javal Davis Sgt. Javal Davis doesn’t have to serve much prison time for abusing detainees at Abu Ghraib in late 2003, but once his incarceration is over, so is his prized career as a soldier. A nine-man Army jury on Friday sentenced Davis to six months in a military prison, reduction in rank to private and a bad-conduct discharge. * Spc. Sabrina Harman A U.S. Army reservist convicted of attaching wires to an Iraqi prisoner in a photographed scene that outraged the international community was sentenced on Tuesday to six months in prison. A military jury at the nation's largest Army base recommended a six-month prison term for Sabrina Harman, 27, a far more lenient sentence than the maximum of five and a half years. The prosecution had asked for a three-year sentence. Harman was credited with 51 days already served and will receive a bad conduct discharge. The jury found her guilty on six of seven abuse-related charges, including a photographed incident in which she placed wires on a hooded Iraqi prisoner and threatened him with execution if he stepped off the box he was standing on. * Spc. Charles A. Graner, Jr. Spc. Charles A. Graner, Jr., on Jan. 14, 2005, became the fifth U.S. soldier convicted for Abu Ghraib prisoner abuse, all of them reservists. Graner, a prison guard in civilian life, was convicted at a general court martial for maltreatment of persons subject to his orders, conspiracy, assault, indecent acts and dereliction of duty. Unlike several earlier trials for Abu Ghraib prisoner abuse, this trial took place not in Iraq but at Fort Hood, Texas. The jury of 10 officers and enlisted men, all of whom had served in Iraq or Afghanistan, sentenced Graner on Jan. 15, 2004, to 10 years in prison (five less than the maximum possible) and to reduction in rank to private, dishonorable discharge and forfeiture of pay and allowances. Graner’s was the first court martial related to Abu Ghraib abuse that went to trial rather then being plea bargained. His sentence will undergo automatic appeal and also theoretically could be modified or undone by the referring commander. * Spc. Megan Ambuhl For standing by while abuse occurred and failing to intervene or report it, Ambuhl was convicted on Oct. 30, 2004, of dereliction of duty and sentenced to reduction in rank to private and loss of a half-month’s pay. Additional charges brought against Ambuhl but dropped under the pretrial agreement had included allegations of conspiracy, maltreatment, and indecent acts. In addition to having the charges reduced, Ambuhl was subjected to a summary court martial under which any imprisonment that might have been imposed would have been limited to thirty days. * Spc. Armin J. Cruz A second U.S. soldier has pled guilty and been convicted for detainee abuse at Abu Ghraib prison in Baghdad, the first from military intelligence. Specialist Armin J. Cruz of the 205th Military Intelligence Brigade was convicted on Sept. 11, 2004, at a special court martial for conspiracy and maltreatment of prisoners. Cruz has been sentenced to eight months’ confinement, reduction in rank to Private (E-1), and a bad conduct discharge. While the ultimate site of his confinement has not been announced his sentence nevertheless begins immediately, even as it is subject to an appeal and to review by the referring commander. * Staff Sgt. Ivan Frederick In the latest Abu Ghraib prisoner abuse court martial, former Army Staff Sgt. Ivan Frederick has pled guilty under a pretrial agreement to conspiracy, dereliction of duty, maltreatment of detainees, assault, and indecent acts. Military Judge Col. James Pohl, U.S. Army, sentenced Frederick to 10 years confinement, reduced to eight years under Frederick’s pretrial agreement, along with reduction in rank to private, loss of pay and allowances, and dishonorable discharge. While previous convictions of Jeremy Sivits and Armin Cruz were before special courts martial for which the maximum possible confinement was one year, Frederick was tried before a general court martial without such a restriction. * Spc. Jeremy C. Sivits Even as questions remain over how far accountability ultimately will extend, in the first court martial over atrocities at the Abu Ghraib U.S. military prison, military policeman Specialist Jeremy C. Sivits, on May 20, 2004, pled guilty under a plea bargain. Sivits, an Army reservist, received a one-year prison sentence, a reduction in rank to Private E-1, and a bad conduct discharge. Under the plea bargain, he will testify in future prosecutions against others charged as perpetrators. Formal charges filed against him declared that on or about Nov. 8, 2003, at or near Abu Ghraib, Sivits conspired with six other U.S. military personnel to violate the Uniform Code of Military Justice (hereinafter "UCMJ") by engaging in the "maltreatment of subordinates" (i.e., detainees). The charges indicated that in order to "effect the object of the conspiracy" Sivits photographed nude detainees forced into a human pyramid. (Charge Sheet, Jeremy C. Sivits, May 5, 2004, http://news.findlaw.com/hdocs/docs/iraq/sivits50504chrg.html (hereinafter "Sivits Charges"). His testimony also revealed that he led one of the detainees and forced him into the pile, although he alleged that at that point the detainees were still clothed. Sivits pled guilty to four counts -- conspiracy to maltreat detainees, two counts of maltreatment of detainees, and dereliction of duty. * <2> BAGRAM AFB SUMMARY: * Capt. Carolyn A. Wood "As of [May 27, 2005], the Army has made no move to prefer criminal charges[.]" * Spc. Brian E. Cammack 3 months, reduction to E1, fine, bad-conduct discharge. * Spc. Glendale C. Walls II charged with assault, prisoner maltreatment, and lying to investigators. * Spc. Joshua Claus charged with assault, prisoner maltreatment, and lying to investigators. * Spc. Willie V. Brand. "[Brand has] been charged with assault and other crimes[.]" * Lt. Gen. Daniel K. McNeill, commander of allied forces in Afghanistan. * Spc. Anthony M. Morden * Spc. Robert S. Melone * Sgt. James P. Boland * Spc. Corey E. Jones * Sgt. Selena Salcido * <3> OTHER CASES <4> STORIES: AP -- February 6, 2005 RESERVIST GETS SIX MONTHS IN PRISON [ JAVAL DAVIS ] http://www.showmenews.com/2005/Feb/20050206News037.asp FORT HOOD, Texas (AP) - Sgt. Javal Davis doesn’t have to serve much prison time for abusing detainees at Abu Ghraib in late 2003, but once his incarceration is over, so is his prized career as a soldier. A nine-man Army jury on Friday sentenced Davis to six months in a military prison, reduction in rank to private and a bad-conduct discharge. The jurors deliberated more than five hours to arrive at their punishment for Davis, a former Abu Ghraib guard who admitted stepping on the hands and feet of handcuffed detainees and falling with his full weight on top of them. After the verdict was read, Davis’ mother, Michelle Carpenter, uncontrollably sobbed in the courtroom. Davis gave his father, Jonathan, a long hug while a tear rolled down Davis’ face. "All of you who aren’t my family can leave now," Davis snapped at spectators after Col. James Pohl, the judge, and the jury left the courtroom. Davis has already been credited with a month served, and his prison term could be reduced another three weeks for good conduct behind bars, said Capt. Chuck Neill, a spokesman for prosecutors. The sentence is among the lightest for any soldier convicted in the Abu Ghraib scandal, which ignited last spring when graphic photographs were made public. Last month, Pvt. Charles Graner, called the abuse ringleader, received 10 years in prison. Defense lawyer Paul Bergrin had urged the jury to lightly punish Davis for his crimes, and afterward he blamed the judge for making rulings that tilted the tables against his client. "We knew ultimately that it was a military court and that it’s almost impossible to receive justice in a military tribunal," he said. Most importantly, Bergrin said, Pohl refused to let him pursue a defense that the Army jury pool had been tainted by comments condemning the Abu Ghraib defendants by President George W. Bush, Defense Secretary Donald Rumsfeld and other top military leaders. The judge ruled that such comments were not prejudicial because they didn’t mention any of the accused by name. Bergrin said military intelligence officers at Abu Ghraib should also face charges for their alleged role in directing the abuse by prisons guards as a way to soften up detainees for interrogation. "They all had their hand in this pie and should have been sitting in the same seat that Javal Davis was sitting in," Bergrin said. "But I don’t believe we’ll ever see them. They’ve been too insulated." Davis, a 27-year-old reservist from Roselle, N.J., faced as many as 6½ years in prison for battery, dereliction of duty and lying to Army investigators. A deal with prosecutors, however, had capped his potential sentence at 18 months. * Reuters -- May 17, 2005 ABU GHRAIB ABUSER SENTENCED TO SIX MONTHS PRISON [ HARMAN ] By Debbie Stevenson http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=8523234 FORT HOOD, Texas (Reuters) - A U.S. Army reservist convicted of attaching wires to an Iraqi prisoner in a photographed scene that outraged the international community was sentenced on Tuesday to six months in prison. A military jury at the nation's largest Army base recommended a six-month prison term for Sabrina Harman, 27, a far more lenient sentence than the maximum of five and a half years. The prosecution had asked for a three-year sentence. Harman was credited with 51 days already served and will receive a bad conduct discharge. The jury found her guilty on six of seven abuse-related charges, including a photographed incident in which she placed wires on a hooded Iraqi prisoner and threatened him with execution if he stepped off the box he was standing on. "I wish to apologize to any and all detainees," Harman told a military courtroom at the base. "I failed my duties. I failed my mission. Not only did I let down the people in Iraq, I let down every single soldier that serves today." "I take full responsibility for my actions," she said. "The decisions I made were mine and mine alone." One of three women implicated in the Abu Ghraib scandal, Harman also appeared in a notorious photograph showing a naked pyramid of Iraqis accused of rioting in a prison yard. She wrote "rapeist" on one prisoner's leg before he was forced to pile into the pyramid. The pictures, which were made public just over a year ago, badly damaged America's reputation abroad. Earlier, her roommate told the military panel that Harman is a gentle woman. "What you see out there is not the true Sabrina Harman," her partner, Kelly Bryant, said in testimony that brought Harman to tears. "She's the type of person who wouldn't allow you to step on an ant or kill a spider." Bryant said Harman, who had worked at a pizza parlor before the war, had wanted to adopt an Iraqi boy. "She's generous, gentle, caring, unselfish," she said. Harman is only the second Abu Ghraib guard convicted by a military panel, following the January court-martial of ringleader Charles Graner, who was sentenced to 10 years at a military prison. Harman's sentence is one of the lesser sentences handed down in the Abu Ghraib cases. Six other soldiers have reached plea deals, with all but one receiving jail terms. After Harman's trial the only remaining case is that of Lynndie England, Graner's former lover who bore his child last year. England is pictured in photos holding a naked prisoner by a leash around his neck and smiling at pointing at the genitals of another detainee. England's lawyer said on Tuesday that a pretrial hearing in her case was scheduled for next Monday, at Ft. Hood, with Graner and other jailed abusers expected to testify. * January 25, 2005 ABU GHRAIB COURT MARTIAL: SPC. CHARLES A. GRANER, JR., SENTENCED TO TEN YEARS By Steven C. Welsh, Esq. Spc. Charles A. Graner, Jr., on Jan. 14, 2005, became the fifth U.S. soldier convicted for Abu Ghraib prisoner abuse, all of them reservists. Graner, a prison guard in civilian life, was convicted at a general court martial for maltreatment of persons subject to his orders, conspiracy, assault, indecent acts and dereliction of duty. Unlike several earlier trials for Abu Ghraib prisoner abuse, this trial took place not in Iraq but at Fort Hood, Texas. The jury of 10 officers and enlisted men, all of whom had served in Iraq or Afghanistan, sentenced Graner on Jan. 15, 2004, to 10 years in prison (five less than the maximum possible) and to reduction in rank to private, dishonorable discharge and forfeiture of pay and allowances. Graner’s was the first court martial related to Abu Ghraib abuse that went to trial rather then being plea bargained. His sentence will undergo automatic appeal and also theoretically could be modified or undone by the referring commander. Controversy has been raised over past efforts by some Bush administration lawyers to question the applicability or limits of various sources of law to post-Sept. 11 military operations, such as the Geneva Conventions, the Convention Against Torture (CAT), the habeas corpus statute, and other related law. As in the other Abu Ghraib prosecutions, Graner was charged under the Uniform Code of Military Justice (UCMJ), providing multiple avenues for recognizing prisoner abuse as criminal and punishing the perpetrators. For example, under the UCMJ it is punishable simply to engage in cruelty or maltreatment towards someone subject to one’s orders, or simply to engage in conduct bringing discredit upon the military. Original charges against Graner included violations of UCMJ Article 93 (maltreatment), Article 134 (bringing discredit to the military), Article 81 (conspiracy), Article 128 (assault) and Article 92 (failure to follow orders/dereliction of duty). Prior to trial, prosecutors had dropped one specification of adultery and one of obstruction of justice, which had been brought under Article 134. Maltreatment: nude pyramid, forced masturbation and simulated oral sex, detainee on a leash, photography While political appointees at the Department of Justice had tested the boundaries of what constituted "torture" under the CAT and related federal legislation, parsing what constituted the intentional infliction of severe pain or suffering, UCMJ Article 93 states simply that cruelty or maltreatment directed at someone subject to one’s orders is a criminal offence: 893. ART. 93. CRUELTY AND MALTREATMENT Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. 10 USC §893, UCMJ Art. 93, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm #893.%20ART.%2093.%20CRUELTY%20AND%20MALTREATMENT As demonstrated by the Abu Ghraib prosecutions, persons subject to one’s orders and therefore protected from cruelty by Article 93 include detainees. The Graner charges alleged as violations of Article 93 that Graner placed nude detainees in a human pyramid and photographed them, ordered detainees to strip, masturbate, and simulate oral sex while being photographed, encouraged alleged co-conspirator Pfc. Lynddie England to drag a detainee by a leash wrapped around his neck, and was photographed with his armed cocked back as if about the punch a detainee. Discredit to the military: Adultery, Forced Masturbation, Obstruction of Justice The Graner charges originally brought three specifications under UCMJ Article 134, a catch-all provision providing a basis for prosecution for any misconduct bringing discredit upon the military or undermining good order and discipline: 934. ART. 134. GENERAL ARTICLE Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. 10 USC §934, UCMJ Art. 134, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm #934.%20ART.%20134.%20GENERAL%20ARTICLE It was under Article 134 that Graner was charged for specifications of adultery with England and attempts to induce Spc. Jeremy C. Sivits (already convicted for Abu Ghraib prisoner abuse) to conceal wrongdoing. The charges had alleged Graner stated to Sivits, "You did not see shit" or words to that effect. Those two specifications apparently were dropped by prosecutors, but Graner was convicted for a third specification brought under Article 134, indecent acts, relating to detainee forced masturbation and related photographing. Assault UCMJ Article 128 criminalizes attempts at unlawful force or violence to do bodily harm: 928. ART. 128. ASSAULT (a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct. (b) Any person subject to this chapter who-- (1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or (2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct. 10 USC §928, UCMJ Art. 128, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm #928.%20ART.%20128.%20ASSAULT The original charges alleged Graner jumped on a pile of detainees, impacting them with his shoulder or upper body, stomped on detainee fingers and toes with shod feet, punched a detainee in the temple hard enough to require medical attention, and struck a detainee with a type of metal rod, including on previously existing lesions. At least one news report raised the prospect of Graner’s conviction deviating from the charges to a minor degree. Duty to Intervene and Dereliction of Duty Ironically, while the defense had sought to raise the prospect that Graner had been obeying orders, for example, alleged orders from military intelligence to weaken detainees in preparation for interrogation, Graner was prosecuted for something analogous to disobeying orders for failing to do his duty to intervene to stop abuse. The military prosecuted him under UCMJ Article 92: 892. ART. 92. FAILURE TO OBEY ORDER OR REGULATION Any person subject to this chapter who-- (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct. 10 USC §892, UCMJ Art. 92, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm #892.%20ART.%2092.%20FAILURE%20TO%20OBEY% 20ORDER%20OR%20REGULATION As the Graner charge sheet indicated, it was believed Graner should have known not only that abusing the prisoners was unlawful, but that he was required to intervene to put a stop to the abuse: -- Graner, who knew of his duties at -- Abu Ghraib -- was derelict in the performance of those duties in that he willfully failed to protect detainees from abuse, cruelty and maltreatment, as it was his duty to do. Charles A. Graner, Jr., charge sheet, March 20, 2004, http://news.findlaw.com/hdocs/docs/iraq/graner51404chrg.html As a result, even to stand by and remain quiet in the face of abuse would have been unlawful. Defense Allegations of Illegal Orders or Intelligence Influence While Graner did not testify at trial, he made an unsworn statement during the sentencing phase, in which, according to news reports, he alleged he was ordered to be abusive to detainees. At least one of his convicted co-conspirators also suggested military intelligence had said to humiliate detainees. News reports are unclear and a transcript of the proceedings does not appear to be publicly available. However, Graner’s unsworn statement was not subject to cross- examination and at least one news source questioned the consistency of the testimony of various defense witnesses. In addition, at least one witness indicated Graner in fact had a pattern of disobeying orders, such as disregarding orders to stay away from Pfc. Lynndie England (with whom he reputedly fathered a child out of wedlock, providing a basis for the original adultery charge). Beyond the question of the perpetrators’ credibility as witnesses, it appears it may be questionable whether within the framework of this prosecution the defense created a plausible argument that intelligence personnel or civilian contractors actually directed the reservists involved with the photographed abuse to engage in specific nefarious acts. The most that can be said might be that inferences once again were raised of aggressive tactics, of some nature, being used outside the scope and focus of the prosecution and perhaps coloring the attitudes of the defendants. When asked at a Pentagon press conference about the Graner trial and allegations of following orders and intelligence-driven abuse, Pentagon spokesman Lawrence Di Rita commented: There was no policy of -- there was no policy, and none of the investigations that have been concluded to date have been able to draw a connection between the activity at Abu Ghraib, and particularly the activity that Specialist Graner was alleged to have participated in, and any approved policies of this department. And I'll leave it at that. Principal Deputy Assistant Secretary of Defense for Public Affairs Lawrence Di Rita, DoD press briefing, Jan. 7, 2005, http://www.defenselink.mil/transcripts/2005/tr20050107-1943.html The Graner prosecution arguably did little to answer questions about any direct connection between superiors or higher officials and the prisoner abuse detailed in the infamous photographs, or the influence of a reputed operational milieu of aggressively pushing the envelope on the treatment of detainees. Given their nature, the prosecution and punishment of individuals for specific acts, the Abu Ghraib prosecutions also have offered little in the way of a "bird’s eye view" regarding broader issues with Iraq detainee operations, with respect to problems with staffing, training, or the incidence of illegality. At the same time, the Abu Ghraib prosecutions arguably do represent an assertion of rule of law in the face of egregious misconduct, especially by military lawyers reputedly not at all "on board" with some of the "legal" experimentation spawned by Bush administration political appointees. For those with a "wait and see" attitude, permitting the military justice system to act before reaching a fresh assessment, there is perhaps a growing sense that much more information is needed about U.S. detainee operations across all fronts, that while the Abu Ghraib photographs had a large media impact, they ultimately could turn out to be a boil on the elephant’s posterior. After all, even just within Abu Ghraib, the nude pyramid pales in comparison with, for example, the alleged bludgeoning death during CIA-led interrogation of an Abu Ghraib "ghost detainee." Also complicating matters with respect to the treatment of detainees is intelligence reform and the potential for changing lines of command. Even within Abu Ghraib, the handling of detainees and the handling of interrogations appears to have been diverse and chaotic, involving military intelligence, CIA, civilian contractors for either agency, Iraqi police of potentially diverse and unknown loyalties, and reservists like Graner supposedly tasked to simply serve as prison guards, and others. Now, as U.S. intelligence is potentially headed towards becoming better coordinated, even with the Abu Ghraib atrocities, the CIA reportedly has not cooperated with DoD investigations, preferring its own in-house review, and on a broader level questions have been raised about DoD efforts to develop new intelligence capabilities which DoD denies are meant to compete with CIA. Some voices are calling for an independent commission, in the spirit of the 9/11 Commission, to probe all major detainee operations in a comprehensive manner. With some Abu Ghraib prosecutions, and other Iraq war detainee abuse cases, still underway, investigations still to be completed, and Guantanamo Bay issues still working their way through the federal courts, the "bird’s-eye view" is still awaited. What is known now, however, is that absent adjustment by an appellate court or the referring commander reservist Charles A. Graner most likely will be spending the next 10 years behind bars. At the very least, even if the photographed atrocities turn out to have been the craziness of poorly trained, poorly qualified individuals unfit for the pressures of a combat zone, who perhaps became confused by the aggressiveness with which detainees were being treated by others, ad-libbing their own bizarre permutations of that aggressiveness, there still remain several outstanding matters. One is, what exactly has been going on with respect to other aggressive treatment of detainees, off-camera, and in some cases, deliberately or through mismanagement, off-the-books. Another is that, even if the photographed abuse by the reservists was the only abuse that occurred, is this not part of the cost of war that must be calculated when making a decision to go to war -- that just as some small percentage of bombs, even smart-bombs, go astray and kill civilians, there will always be some percentage of individuals who in civilian life might have avoided criminality but in the throes of war turn out not to be up to the challenges and the pressures, who do things that in peacetime they might not have done, to their detriment and that of their wartime victims. Sources and Further Reading: Charles Aldinger, "Officials: Pentagon Moves Into Overseas Spy Operations," Reuters, Jan 24, 2005, http://www.reuters.com/newsArticle.jhtml?type= topNews&storyID=7412898§ion=news T.A. Badger, "U.S. Soldier Sentenced to 10 Years for Abu Ghraib Abuse," AP, Jan. 18, 2005, http://www.nylawyer.com/news/05/01/011805o.html Assistant Attorney General Jay S. Bybee, "Memorandum for White House Counsel Alberto Gonzales Re: Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A," Aug. 1, 2002, http://www.cdi.org/news/law/doj-torture-memo-080102 (downloaded from http://www.washingtonpost.com/wp-srv/nation/documents/ dojinterrogationmemo20020801.pdf) Susan Candiotti, Jim Polk, "Graner sentenced to 10 years: He admitted to 'criminal' acts but said he was following orders," CNN, Jan. 16, 2005, http://www.cnn.com/2005/LAW/01/16/graner.court.martial/index.html Spc. Matthew Chlosta, "Soldier gets 10 years for Abu Graib Prison abuse," Army News Service, Jan. 19, 2005, http://www4.army.mil/ocpa/print.php?story_id_key=6764 Principal Deputy Assistant Secretary of Defense for Public Affairs Lawrence Di Rita, DoD news briefing, Jan. 7, 2005, http://www.defenselink.mil/transcripts/2005/tr20050107-1943.html "Statement From Pentagon Spokesman Lawrence DiRita on Intelligence Activities of the Defense Department," Pentagon News Release, Jan. 24, 2005, http://www.defenselink.mil/releases/2005/nr20050123-2000.html Maj.Gen. George R. Fay, USA, Lt.Gen. Anthony R. Jones, USA AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, Aug. 25, 2004, http://www.cdi.org/news/law/fay-report.pdf Michael A. Fuoco, "Graner defense strengthens, jury gets case," Pittsburgh Post- Gazette, Jan. 14, 2005, http://www.post-gazette.com/pg/05014/442140.stm Barton Gellman, Secret Unit Expands Rumsfeld's Domain: New Espionage Branch Delving Into CIA Territory, Washington Post, Jan 23, 2005, http://www.washingtonpost.com/wp-dyn/articles/A29414-2005Jan22.html "Hearing Ends for Navy Seal Accused of Prisoner Abuse," PA, Jan 14, 3005, http://news.scotsman.com/latest.cfm?id=3995147 Douglas Jehl, Eric Schmitt, "C.I.A. Bid to Keep Some Detainees Off Abu Ghraib Roll Worries Officials," New York Times, May 24, 2004, http://www.nytimes.com/2004/05/25/politics/25ABUS.html?ex=1106456400&en= f2ed416cc18ea625&ei=5070&pagewanted=print&position= Mussab al-Khairalla, "Many Iraqis say Graner abuse sentence too lenient," Reuters, Jan. 16, 2005, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7337196 Anita Powell, "Defense rests in Graner court-martial," Cox News Service, Jan. 14, 2005, http://www.wacotrib.com/news/content/shared/news/stories/ PRISON_ABUSE_TRIAL_0114_COX.html;COXnetJSessionID =BuwDX6nXjuqnCPCiiOAZONyxdySHJJse3yVhEBn2QAaWq6TrSBhf! -919899664?urac=n&urvf=11061617952110.9662898910368336 "Preferred Charges Against Spc. Charles Graner," U.S. military court martial charge sheet, May 20, 2004, http://news.findlaw.com/hdocs/docs/iraq/graner51404chrg.html Senior Military Lawyer, "Background Briefing - Uniform Code of Military Justice and Court Martial Procedures," Department of Defense Press Conference, May 19, 2004, http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html Adam Tanner, "Abu Ghraib Abuse Leader Gets 10-Year Sentence," Reuters, Jan. 16, 2005, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7337009 10 USC §892, UCMJ Art. 92, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm# 892.%20ART.%2092.%20FAILURE%20 TO%20OBEY%20ORDER%20OR%20REGULATION 10 USC §893, UCMJ Art. 93, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm# 893.%20ART.%2093.%20CRUELTY%20AND%20MALTREATMENT 10 USC §928, UCMJ Art. 128, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm# 928.%20ART.%20128.%20ASSAULT 10 USC §934, UCMJ Art. 134, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm# 934.%20ART.%20134.%20GENERAL%20ARTICLE * CDI -- Oct. 26, 2004 ABU GHRAIB COURT MARTIAL: STAFF SGT. IVAN FREDERICK, USA Steven C. Welsh, Esq. swelsh@cdi.org In the latest Abu Ghraib prisoner abuse court martial, former Army Staff Sgt. Ivan Frederick has pled guilty under a pretrial agreement to conspiracy, dereliction of duty, maltreatment of detainees, assault, and indecent acts. Military Judge Col. James Pohl, U.S. Army, sentenced Frederick to 10 years confinement, reduced to eight years under Frederick’s pretrial agreement, along with reduction in rank to private, loss of pay and allowances, and dishonorable discharge. While previous convictions of Jeremy Sivits and Armin Cruz were before special courts martial for which the maximum possible confinement was one year, Frederick was tried before a general court martial without such a restriction. Frederick was a reservist from Virginia who had been a prison guard in civilian life. While the trial took place at a military camp outside Baghdad, Frederick likely will serve his prison time in the United States. Some of Frederick’s crimes included punching a detainee so hard in the chest the detainee had to be resuscitated, forcing three detainees to masturbate, attaching wires to a detainee and telling him if he fell off a box he would be electrocuted, a spectacle Frederick photographed, and standing by while nude detainees were forced into a human pyramid, which he also photographed. Conspiracy In Charge I, Frederick was accused of violating Article 81 of the Uniform Code of Military Conduct (hereinafter UCMJ) against conspiracy: 881. ART. 81. CONSPIRACY Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct. 10 USC §881, UCMJ Article 81, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#881.%20ART.%2081.%20CONSPIRACY In particular, Frederick was alleged to handcuff three detainees and directing co-conspirator Pfc. Lynndie England to photograph them, and separately to conspire with others to form the human pyramid of nude detainees. Dereliction of Duty In Charge II Frederick was accused of dereliction of duty "in that he failed to protect detainees from abuse, cruelty and maltreatment, as it was his duty to do." Ivan L. Frederick Charge Sheet, p. 2, available through http://news.findlaw.com/hdocs/docs/iraq/ifred32004chrg.html For this he was charged under Article 92 of the UCMJ, failure to follow orders: 892. ART. 92. FAILURE TO OBEY ORDER OR REGULATION Any person subject to this chapter who-- (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct. 10 USC §892, UCMJ Article 92, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#892.%20ART.%2092.%20FAILURE%20TO%2 0OBEY%20ORDER%20OR%20REGULATION That is, it was Frederick’s duty to intervene to stop the prisoner abuse, so that his failure to do so was akin to disobeying orders. Maltreatment of Detainees In Charge III Frederick was accused of violating UCMJ Article 93 against cruelty and maltreatment of persons subject to one’s orders, in this case detainees that were subject to his orders: 893. ART. 93. CRUELTY AND MALTREATMENT Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. 10 USC §893, UCMJ Article 93. The maltreatment charge covered several incidents, including: · the abovementioned incident of Frederick attaching wires to a hooded detainee and threatening him with electrocution if he fell off a box · the abovementioned incident involving the nude human pyramid and related photography · Frederick not only forcing detainees to engage in masturbation, but also forcing the detainees to position themselves in such a way as to simulate oral sex, and Frederick taking photographs · Frederick sitting on top of a detainee sandwiched in between two medical litters bound by padded material and posing for a photograph · grabbing the hands and arms of detainees and forcing them to strike or punch each other, with the detainees then striking or punching each other Assault In Charge IV, Frederick was charged with violating UMCJ Article 128 against assault: 928. ART. 128. ASSAULT (a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct. (b) Any person subject to this chapter who-- (1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or (2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct. 10 USC §928, UCMJ Article 128, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#928.%20ART.%20128.%20ASSAULT Frederick was charged specifically with: jumping on a pyramid of detainees and impacting them with his shoulder or upper body (it is unclear whether this was the nude pyramid or a different pyramid, but apparently this pyramid may have involved detainees that were not nude) stomping on detainees’ hands and feet with "shod" feet (presumably wearing boots) punching a detainee in the chest with enough force to require the detainee to have difficulty breathing and require medical assistance Indecent Acts A charge over indecent acts centered around the above-mentioned incident involving forced masturbation. It was brought under UMCJ Article 134, a catch- all provision with applicability to crimes and offenses not otherwise mentioned, including conduct prejudicing good order and discipline or bringing discredit upon the armed forces: 934. ART. 134. GENERAL ARTICLE Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. 10 USC §934, UCMJ Article 134, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#934.% 20ART.%20134.%20GENERAL%20ARTICLE Although Frederick pled guilty, shortening his trial, there still were witnesses called during the sentencing phase of his trial, including an abused detainee called by the prosecution, at least one psychologist, and several additional witnesses for the defense. Two officers who had served at Abu Ghraib reportedly alleged the CIA sometimes had directed abuse and argued that orders from military command said to toughen interrogations. In an unsworn statement Frederick alleged, with respect to the detainee he threatened with electrocution, that a U.S. Army criminal investigator wanted the detainee stressed out to aid an interrogation, and that two other soldiers also attached wires to that detainee. In related cases before the same military judge two additional Army reservists, Sgt. Charles Graner and Sgt. Javal Davis were ordered to stand trial before general courts martial for their alleged part in Abu Ghraib abuse. Graner is alleged to have been the ring leader in the matter. His attorney is arguing in the press that Graner was acting under fully lawful orders. All total eight reservists have had charges brought against them for abuses at Abu Ghraib, with three convicted thus far. Sources and Further Reading: "Army Staff Sgt. Pleads Guilty to Mistreatment of Prisoners," U.S. Central Command news release, Release Number 04-10-55, Oct. 20, 2004, http://www.centcom.mil/CENTCOMNews/news_release.asp? NewsRelease=20041055.txt "Army Staff Sgt. Sentenced to Eight Years," U.S. Central Command news release, Release Number 04-10-58, Oct. 21, 2004, http://www.centcom.mil/CENTCOMNews/news_release.asp?NewsRelease=20041055.txt "Army Staff Sgt. Sentenced to Eight Years," Multi-National Force-Iraq news release, Release Number, 041021, Oct. 21, 2004, http://www.centcom.mil/CENTCOMNews/ news_release.asp?NewsRelease=20041055.txt "Abu Ghraib guard pleads guilty," CNN, Oct. 20, 2004, http://www.cnn.com/2004/WORLD/meast/10/20/iraq.main/index.html Ivan L. Frederick Charge Sheet, http://news.findlaw.com/hdocs/docs/iraq/ifred32004chrg.html Greg LaMotte, "Mixed Reaction Among Iraqis Following US Sergeant's Sentencing for Prisoner Abuse," Voice of America, Oct. 22, 2004, http://www.voanews.com/english/2004-10-22-voa22.cfm Demian McLean and Todd Zeranski, "U.S. Soldier Pleads Guilty to Abuse at Iraqi Prison (Update1)," Bloomberg, Oct. 20, 2004, http://quote.bloomberg.com/apps/news?pid=10000103&sid=aXWCUmscZ2uc&refer=us# "NCO Enters Guilty Plea in Iraqi Detainee Abuse Trial," Armed Forces Press Service, Oct. 20, 2004, http://www.defenselink.mil/news/Oct2004/n10202004_2004102005.html Terry Friel, "U.S. Soldier Pleads Guilty to Abusing Iraqi Prisoners," Reuters, Oct. 20, 2004, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=6557826 "Staff Sgt. Sentenced in Detainee Abuse Trial," Armed Forces Press Service, Oct. 21, 2004, http://www.defenselink.mil/news/Oct2004/n10212004_2004102106.html Terry Friel, "U.S. Soldier Sentenced to 8 Years for Prison Abusem," Reuters, Oct. 21, 2004, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID =6576467§ion=news "Two U.S. Soldiers to Stand Trial Over Iraq Jail Abuse," Reuters, Oct. 22, 2004, http://www.reuters.com/newsArticle.jhtml;jsessionid= ACQ0T34SJCW2OCRBAE0CFFA?type=topNews&storyID=6585028 * * * CDI -- Nov. 9, 2004 ABU GHRAIB COURT MARTIAL: SPECIALIST MEGAN AMBUHL, USA By Steven C. Welsh, Esq. swelsh@cdi.org http://www.cdi.org/news/welsh/ Army Specialist Megan Ambuhl has become the third military police reservist and fourth U.S. soldier convicted over Abu Ghraib prisoner abuse. For standing by while abuse occurred and failing to intervene or report it, Ambuhl was convicted on Oct. 30, 2004, of dereliction of duty and sentenced to reduction in rank to private and loss of a half-month’s pay. Additional charges brought against Ambuhl but dropped under the pretrial agreement had included allegations of conspiracy, maltreatment, and indecent acts. In addition to having the charges reduced, Ambuhl was subjected to a summary court martial under which any imprisonment that might have been imposed would have been limited to thirty days. Ordinarily the summary court martial, limited to enlisted personnel, is reserved for minor disciplinary offences, in contrast to the potentially more punitive special court martial and general court martial. At a background briefing in May 2004 prior to the first Abu Ghraib court martial, a senior military lawyer explained: The summary court martial. Maximum punishment is 30 days. Officers don’t go to summary court martials, because, one, they can’t be confined in a summary court martial. It’s generally considered for minor disciplinary-type procedures, minor military-type offenses; UA, unauthorized absence, for example, smart-mouth at your commander, et cetera. Senior Military Lawyer, "Background Briefing -- Uniform Code of Military Justice and Court Martial Procedures," DoD News Transcript, May 19, 2004, http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html Ambuhl reportedly was present during sexually humiliating abuse including the formation and photographing of a human pyramid of nude detainees, and was partially visible in a photograph of Pfc. Lynndie England holding a leash attached to a nude detainee. At the same time, several detainees reportedly praised Ambuhl for treating them humanely, and she apparently came to the aid of a detainee who had difficulty breathing after being punched by another soldier. Dereliction of duty, the sole remaining charge against Ambuhl, is governed by Article 92 of the Uniform Code of Military Justice (UCMJ) governing the failure to follow orders or obey regulations: 892. ART. 92. FAILURE TO OBEY ORDER OR REGULATION Any person subject to this chapter who -- (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct. 10 USC §892, UCMJ Article 92, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#892.%20ART.%2092.%20FAILURE% 20TO%20OBEY%20ORDER%20OR%20REGULATION Because it was Ambuhl’s duty to intervene to stop the prisoner abuse, her failure to do so was akin to disobeying orders. While admitting the wrongfulness of Ambuhl’s failure to intervene, Ambuhl’s attorney also has argued that she neglected to report the abuse because of the involvement of superiors and military intelligence personnel. Thus far, all four Abu Ghraib prosecutions have resulted in plea bargains and three have been brought under either a summary court martial or special court martial, with only former Army Staff Sergeant Ivan Frederick being subjected to a general court martial, resulting in an eight-year prison sentence. Remaining Abu Ghraib courts martial include those of Pfc. England, scheduled to stand trial Jan. 17, 2005, Specialist Charles Graner, whose trial is set to begin Jan. 7, 2005, and Sgt. Javal Davis, who goes on trial starting Feb. 1, 2005. Sources and further reading: "Abu Ghraib Article 39A Hearings Held in Germany," Armed Forces Press Service, Aug. 25, 2004, http://www.defenselink.mil/news/Aug2004/n08252004_2004082503.html "Abu Ghraib guard agrees to plea bargain," UPI, Nov. 2, 2004, http://washingtontimes.com/upi-breaking/20041102-074621-6323r.htm Will Dunham, "Soldier Pleads Guilty in Abu Ghraib Scandal, Reuters," Nov. 3, 2004, http://olympics.reuters.com/newsArticle.jhtml?type=topNews&storyID=6695812 Estela I. Velez Pollack, "Military Courts Martial: An Overview," Congressional Research Service Report, Order Code RS21850, May 26, 2004, http://www.fas.org/man/crs/RS21850.pdf Senior Military Lawyer, "Background Briefing -- Uniform Code of Military Justice and Court Martial Procedures," DoD News Transcript, May 19, 2004, http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html 10 USC §892, UCMJ Article 92, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#892.%20ART.%2092.%20FAILURE%20TO%2 0OBEY%20ORDER%20OR%20REGULATION Josh White, "Guilty plea by soldier spares her prison term," The Washington Post, Nov. 3, 2004, http://www.boston.com/news/world/middleeast/articles/2004/11/03/soldier_pleads_g uilty_to_failing_in_duty_at_abu_ghraib/ * CDI -- Sept. 15, 2004 MILITARY INTELLIGENCE SPC. ARMIN J. CRUZ CONVICTED OVER ABU GHRAIB ABUSE By Steven C. Welsh, Esq. swelsh@cdi.org A second U.S. soldier has pled guilty and been convicted for detainee abuse at Abu Ghraib prison in Baghdad, the first from military intelligence. Specialist Armin J. Cruz of the 205th Military Intelligence Brigade was convicted on Sept. 11, 2004, at a special court martial for conspiracy and maltreatment of prisoners. Cruz has been sentenced to eight months’ confinement, reduction in rank to Private (E-1), and a bad conduct discharge. While the ultimate site of his confinement has not been announced his sentence nevertheless begins immediately, even as it is subject to an appeal and to review by the referring commander. Cruz is a reservist from Texas who was one of the few intelligence soldiers featured in graphic photographs of prisoner abuse. While publicly available information about Cruz’s involvement is not yet complete, Cruz has been accused of forcing nude prisoners to crawl across the floor in such a manner that their genitals dragged on the concrete, using his foot to position prisoners’ buttocks into positions of feigned sexual activity, and standing by while prisoners were handcuffed so tightly their wrists bled. The abuse and Cruz’s involvement arguably add to the picture of confusion and disorganization already characterizing past operations at Abu Ghraib. Left unclear is the relevance of abuse to intelligence interrogation and Cruz’s own involvement with interrogation, intelligence or otherwise. In this case, the abuse has been connected in part with retaliation against three prisoners suspected of raping a juvenile, and it is unclear the extent to which non- intelligence interrogation was involved. Although Cruz was assigned to military intelligence, his role reportedly was to have been that of an analyst, pulling together information gathered by interrogators rather than directly taking part in interrogation himself. Apparently, however, Cruz was often used to assist with questioning, perhaps blurring the lines between interrogation and analysis and exemplifying the gross understaffing of operations at Abu Ghraib. Moreover, it is unclear the extent to which interrogation was at issue during the abuse depicted in the notorious photographs, or the extent to which Cruz may have been involved with intelligence interrogation-related abuse outside that context. At the press conference announcing the conclusion of a U.S Army investigation into military intelligence activities at Abu Ghraib, it was indicated that none of the detainees in the photographs had intelligence value. And it has been reported that Cruz was not to have been involved with interrogation in the context of the abuse featured in the photographs. Even his presence in that part of the prison at that time was said to be in response to a passing invitation from a colleague. However, testimony in another Abu Ghraib case accused Cruz of being aggressive during what apparently were intelligence interrogations, banging on a table, yelling, screaming, and possibly assaulting detainees. Adding to the confusion is that in the above-mentioned Army report Cruz is referred to by code number. One might speculate that ironically, while addressing Cruz’s presence in the graphic photographs, Cruz’s special court martial may have sidestepped other delicate questions such as the extent to which abuses occurred off-camera during intelligence interrogation, whether those abuses were systematic, and why an intelligence analyst became involved with interrogation rather than relying on those trained and designated for that function. The latter question in turn raises questions about the readiness of operations at Abu Ghraib, pointing to the fact that military intelligence, like the military police, were under-resourced and under-staffed for their mission, in addition to relying on reservists such as Cruz who were not full-time professional military. Cruz expressed remorse for his actions, took full responsibility, and in response to questioning by the judge speculated that his behavior may have been impacted by emotional trauma suffered as the result of a mortar attack on Abu Ghraib, an attack that reportedly resulted in the death of a colleague. He expressed what his sentiment had been at the time of the abuse, a feeling that his victims were somehow connected with the attack, even though he knew that most likely was not the case. The fact that Cruz was prosecuted under a special court martial, a potentially faster procedure with more lenient sentencing, meant that his imprisonment could not have exceeded one year. His sentence still could be adjusted by either the commander or an appellate court. Cruz was charged under Articles 81 and 93 of the Uniform Code of Military Justice (hereinafter UCMJ). Article 93 criminalizes the maltreatment of any person subject to one’s orders: 893. ART. 93. CRUELTY AND MALTREATMENT Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. 10 USC §893, UCMJ Art. 93, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm #893.%20ART.%2093.%20CRUELTY%20AND%20MALTREATMENT Article 81 makes it an added offense to conspire with others to commit a particular UCMJ offense, in the event that one of the conspirators commits an act aimed at furthering progress towards achieving the primary offense: 881. ART. 81. CONSPIRACY Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct. 10 USC §893, UCMJ Art. 81, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#881.%20ART.%2081.%20CONSPIRACY DoD reports that thus far in connection with abuse at Abu Ghraib and other detention facilities 45 individuals have been referred for courts martial, 12 for general officer letters of reprimand, and that 23 soldiers have been administratively separated. In connection with Abu Ghraib, two soldiers have been convicted by special court martial, both pleading guilty, five are awaiting a general court martial, and one has received a preliminary hearing that could lead to a general court martial. While Cruz was from military intelligence, the other seven are military police. In addition to Cruz, military policeman Jeremy Sivits in May 2004 also faced a special court martial and pled guilty, as part of a plea bargain agreement. Facing general courts martial, permitting more severe sentencing and providing a somewhat more extensive procedural framework, are military police Sgt. Javal Davis, Spc. Sabrina Harman, Spc. Megan Ambuhl, Cpl. Charles Graner and Staff Sgt. Ivan Frederick. Frederick is expected to plead guilty on Oct. 20, 2004. Pfc. Lynndie England has been subjected to prosecution and has faced an Article 32 hearing, a preliminary hearing to determine whether she will go on to face a general court martial. Additional prosecutions and investigations remain underway over prisoner abuse, including prisoner deaths, occurring elsewhere in Iraq and Afghanistan. In addition to military personnel, the involvement of CIA personnel and civilian contractors remains a subject of inquiry (for example a CIA civilian contractor has been indicted in federal court over the death of a detainee in Afghanistan). Investigators have indicated that the CIA has not been fully cooperative with efforts to investigate all activities at Abu Ghraib, including the existence of "ghost" detainees kept "off the books" in violation of law. Clearly a number of overriding questions remain regarding Abu Ghraib and ongoing detention operations. One is why Abu Ghraib operations became so disorganized, undisciplined, and lacking in necessary human and material resources, exemplified by shockingly low numbers of military staff in ratio to the number of prisoners and the absence of such basic equipment as video surveillance cameras or appropriate computer and communications equipment. Another key issue is how, in a context involving military police, military intelligence, military civilian contractors, and individuals affiliated with the CIA, the various elements of such a diverse "force" interacted with each other, as well as Iraqi police who were present, and how this impacted on the existence of a chain of command and the nature of accountability -- in short, who was in charge. It was unclear who was prepared to take overall responsibility for operations, whether the authority of the military commander was undermined, and why she permitted that to occur. Complicating matters further was the fact that Abu Ghraib was given a mission vastly expanded from its original purpose of detaining criminals without the capacity even to ensure its security from attack. Added to these issues are the broader concerns of whether Abu Ghraib exemplified limitations in the overall Iraq war effort with respect to the adequacy of planning, resourcing, and adaptability, as well as the wisdom of relying on large numbers of guard and reserves to carry out combat, combat-related, and other very serious missions for significant periods of time. Thus far, the response to Abu Ghraib has involved, among other steps, various military investigations, criminal prosecutions, a special panel investigation, and congressional hearings. Whether these steps will be adequate to capture some of the "big-picture" lessons to be learned and prompt good policy, doctrine, and planning to effectively grapple with challenges posed by an evolving security environment remains to be seen. Sources and further reading: "U.S. Intelligence Soldier Jailed Over Abu Ghraib," Luke Baker and Ed Cropley, Reuters, Sept. 11, 2004, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=6210302§ion= news "US Intelligence Soldier Pleads Guilty to Iraq Abuse," Luke Baker, Reuters, Sept. 11, 2004, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=6210302§ion= news "Cruz pleads guilty, receives Bad Conduct Discharge," Multi-National Forces Iraq, News Release #040911c, Sept. 11, 2004, http://www.mnf-iraq.com/media-information/september2004/040911c.htm "Department of Defense Statement on Seymour Hersh Book," Department of Defense News Release, No. 889-04, Sept. 10, 2004, http://www.defenselink.mil/releases/2004/nr20040910-1240.html "Intelligence operative to plead guilty to Abu Ghraib abuse," CNN, Sept. 9, 2004, http://edition.cnn.com/2004/LAW/09/08/abu.ghraib.guilty/ "Investigation of Intelligence Activities at Abu Ghraib," U.S. Army AR-15 reports, Aug. 25, 2004, http://www.cdi.org/news/law/fay-report.pdf Gen. Paul Kern, USA, Lt. Gen. Anthony Jones, USA, Maj. Gen. George Fay, USA, Special Defense Department Briefing on Results of Investigation of Military Intelligence Activities at Abu Ghraib Prison Facility, Aug. 25, 2004, http://www.defenselink.mil/transcripts/2004/tr20040825-1224.html Senior Military Lawyer, "Background Briefing - Uniform Code of Military Justice and Court Martial Procedures," Department of Defense Press Conference, May 19, 2004, http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html "Spc. Harman Article 32 Hearing Concluded," U.S. Central Command News Release Number: 04-06-45, June 25, 2004, http://www.centcom.mil/CENTCOMNews/News_Release.asp?NewsRelease=20040645.txt 10 U.S.C. §893, U.C.M.J. Art. 81, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#881.%20ART.%2081.%20CONSPIRACY 10 U.S.C. §893, U.C.M.J. Art. 93, http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#893.%20ART.%2093.%20CRUELTY%20AND% 20MALTREATMENT "U.S. Soldier Sentenced to Eight Months for Abu Ghraib (Update1)," Bloomberg, Sept. 11, 2004, http://quote.bloomberg.com/apps/news?pid=10000087&sid=a0lIlljzVoa4&refer= top_world_news Michelle Voeller-Gleason, "Soldier pleads guilty to detainee abuse, others face charges," Army News Service, May 25, 2004, http://www4.army.mil/ocpa/read.php?story_id_key=5992 * May 17, 2004 FIRST ABU GHRAIB PRISONER ABUSE COURT MARTIAL [SIVITS] Steven C. Welsh, Esq. CDI Research Analyst Even as questions remain over how far accountability ultimately will extend, in the first court martial over atrocities at the Abu Ghraib U.S. military prison, military policeman Specialist Jeremy C. Sivits, on May 20, 2004, pled guilty under a plea bargain. Sivits, an Army reservist, received a one-year prison sentence, a reduction in rank to Private E-1, and a bad conduct discharge. Under the plea bargain, he will testify in future prosecutions against others charged as perpetrators. Formal charges filed against him declared that on or about Nov. 8, 2003, at or near Abu Ghraib, Sivits conspired with six other U.S. military personnel to violate the Uniform Code of Military Justice (hereinafter "UCMJ") by engaging in the "maltreatment of subordinates" (i.e., detainees). The charges indicated that in order to "effect the object of the conspiracy" Sivits photographed nude detainees forced into a human pyramid. (Charge Sheet, Jeremy C. Sivits, May 5, 2004, http://news.findlaw.com/hdocs/docs/iraq/sivits50504chrg.html (hereinafter "Sivits Charges"). His testimony also revealed that he led one of the detainees and forced him into the pile, although he alleged that at that point the detainees were still clothed. Sivits pled guilty to four counts -- conspiracy to maltreat detainees, two counts of maltreatment of detainees, and dereliction of duty. Orders and Duty Sivits was charged with dereliction of duty in violation of Article 92 of the Uniform Code of Military Justice, which reads: Any person subject to this chapter who - (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct. (10 USC Sec. 892 (emphasis added). http://caselaw.lp.findlaw.com/casecode/uscodes/10/ subtitles/a/parts/ii/chapters/47/subchapters/x/sections/section_892.html) Far from the prospect of reviving the Nuremberg non-defense of "just following orders," the Sivits charges indicated quite the opposite -- not only that Sivits should have refrained from illegal activity, but that he was under a duty to intervene to protect the detainees: ... Sivits ... who should have known of his duties at or near ... Abu Ghraib ... was derelict in the performance of those duties in that he negligently failed to protect detainees from abuse, cruelty and maltreatment, as it was his duty to do so. (Sivits Charges) In other words, Sivits' failure to actively intervene to protect the detainees against illegal behavior was itself being equated with the failure to follow valid orders, in that it was his duty to protect the detainees and, put simply, he failed to do his duty. Procedures and Future Court Martials The Sivits prosecution was a "special court martial," a procedure for which the maximum penalty is one year's imprisonment, reduction in rank, and a bad conduct discharge. A special court martial contrasts with a "general court martial" in that a general court martial may result in more serious punishment and a dishonorable discharge. (There also are procedural differences, such as a pretrial hearing, and other differences which become more relevant if a defendant pleads not guilty and forces the prosecution to prove its case.) It may be that other military defendants prosecuted for Abu Ghraib atrocities will receive general court martials. One can surmise that Sivits' involvement with the atrocities was considered less egregious than that of the others, for which, under the plea bargain, Sivits was prosecuted first and provided a procedure that would result in a lighter sentence -- even if it was the maximum for that procedure. Sivits still must be available to testify truthfully in subsequent prosecutions. Commander Role, the Possibility of Clemency, and Plea Bargains The decision to send the case into a special court martial belonged to the commander, who is termed the "convening authority" ordering the court martial, although he otherwise is not directly involved with the initial proceedings. In this case, the relevant commander is Lt. Gen. Thomas Metz, USA, Multi-National Corps., Iraq, and III Corps (U.S.). As in this case, the commander's decision to send a matter into a special court martial rather than a general court martial can be part of a plea bargain. After a conviction, the commander also has the authority to adjust the sentence or even overturn the conviction, or remove some of the charges. In the case of a plea bargain, it can also be the case that a reduction of the sentence by the commander is part of the pre-trial agreement. Once a transcript from Sivits' court martial is prepared and reviewed by the judge for accuracy, it will be forwarded to Metz for any action he chooses to take. Appeals Process and Possibility of Change to Sentence With the level of punishment currently set for Sivits, even with his guilty plea there also will be an automatic appeals process involving at least one appellate court. The automatic appeal will be to the appellate service court associated with the relevant branch of the military, in this case the Army Court of Criminal Appeals. Like the commander, that court would have discretion to adjust the sentence, and may review both matters of law and matters of fact, based upon the record from the trial. There is also the possibility that, if the sentence is affirmed, the case could be forwarded to the U.S. Court of Appeals for the Armed Forces. The time frame for the appeals process is unpredictable, and with sentences beginning upon conviction, it is theoretically possible that Sivits could serve his entire year in prison before the appeals process is completed. On the other hand, the fact he pled guilty could expedite review because it means there is less to review. Sivits was convicted roughly four months after the Abu Ghraib investigation was initiated, and two months after he himself was charged, and he already is in confinement. However, given the various levels of appeals, there is the possibility that his sentence, or even his conviction, could be adjusted some number of months in the future. The Sivits court martial took place in Baghdad, a fact praised by a member of the Iraqi Governing Council who nevertheless would have preferred to see Iraqi judges involved with the proceedings. It may bear noting that Sivits, and three other defendants arraigned thus far in connection with Abu Ghraib atrocities, are reservists from rural Maryland. It remains to be seen if that aspect of the Abu Ghraib cases draws closer attention to the strategy of deploying large numbers of guardsmen and reservists into a war zone for periods of time that arguably treat them as if they had enlisted as full-time military. From a military justice viewpoint, it also may mean that sentencing authorities feel the need to not be lenient, not only because of the heinous nature of the abuses -- that is, if the particular individuals involved in fact are themselves found to be guilty of participation -- but also because of a real and perceived need to stress that all military are required to be subject to the same discipline, standards, and requirements of U.S. and international law. Sources and Further Reading: "Appellate Review of Courts-Martial," U.S. Court of Appeals for the Armed Forces, http://www.armfor.uscourts.gov/AppellateRev.htm Luke Baker and Alastair Macdonald, "Soldier Gets Year Jail Term for Iraq Prisoner Abuse," Reuters, May 19, 2004, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=5195508 Charge Sheet, Jeremy C. Sivits, May 5, 2004, http://news.findlaw.com/hdocs/docs/iraq/sivits50504chrg.html A Senior Military Lawyer, "Background Briefing - Uniform Code of Military Justice and Court Martial Procedures," Department of Defense News Transcript, May 19, 2004, http://www.defenselink.mil/cgi- bin/dlprint.cgi?http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html Peter Hermann, "Soldier gets year in prison in Iraq abuses: Sivits was Army reservist in Md.-based MP company," Baltimore Sun, May 20, 2004, http://www.baltimoresun.com/news/nationworld/iraq/bal- te.baghdad20may20001716,0,5122228.story?coll=bal-home-headlines 10 USC Sec. 892 (UCMJ Article 92), http://caselaw.lp.findlaw.com/casecode/uscodes/10/subtitles/a/parts/ii/chapters/ 47/subchapters/x/sections/section_892.html "Update From Court-Martial of Soldier," U.S. Central Command News Release, May 19, 2004, http://www.centcom.mil/CENTCOMNews/news_release.asp?NewsRelease=20040545.txt * Raleigh-Durham News & Observer -- Apr 27, 2005 TESTIMONY BY SOLDIERS BEGINS IN DEATHS OF TWO IRAQIS By Jay Price http://newsobserver.com/news/story/2350625p-8728466c.html CAMP LEJEUNE -- Minutes after shooting two Iraqis, 2nd Lt. Ilario G. Pantano bragged about leaving a sign over their bodies bearing the Marine slogan "No Better Friend, No Worse Enemy," according to a witness in a hearing to determine whether Pantano is court-martialed on charges of premeditated murder. The sign was "like a death card," said Lt. Samuel Cunningham, a platoon leader whose unit was guarding a bridge about 1,000 yards from the killing site that day, April 15, 2004. "I told him it was inappropriate, and he should go back and get it." Pantano, 33, a former film executive from New York, has been charged with two counts of premeditated murder in the deaths of the men, whom his unit stopped during a cordon-and-search operation in Mahmudiyah. According to written charges, Pantano ordered another Marine and a sailor to remove the handcuffs from Tahab Ahmead Hanjil and Hamaady Kareem, then told other servicemen to look away and shot the two Iraqis in the back with an M-16 assault rifle. Cunningham testified Tuesday that he heard 45 to 50 shots. They came so quickly and smoothly, Cunningham said, he thought someone was firing a machine gun. About 30 minutes later, Pantano walked up and told him about the dead Iraqis and the sign. Pantano left the bodies on display as a message to locals and vandalized Hanjil's vehicle by slashing the tires and smashing the headlights, taillights and a rear window, according to the charge sheet. If convicted, Pantano could face the death penalty. His attorneys, who do not dispute that Pantano shot the Iraqis, have said that he had their cuffs removed so that the men could search their own vehicle, in order to protect Marines from booby traps. Pantano fired in self-defense when the two men moved toward him, his lawyers say. The Pantano case is one of several prosecutions in North Carolina related to the war that have garnered national attention. As his case proceeds, an Army jury at Fort Bragg is deciding whether Sgt. Hasan Akbar will die for killing two officers and wounding 14 other military personnel in a sneak attack on comrades in Kuwait. David Passaro, a former CIA contractor from Lillington, faces trial in Raleigh's federal court on charges that he beat an Afghan detainee who later died. And, before her case was moved to Texas, Pfc. Lynndie England faced criminal proceedings at Fort Bragg in the wake of the Abu Ghraib prison abuse scandal. But the idea of a Marine's facing execution for killing suspected insurgents in a war zone has created an outcry. U.S. Rep. Walter Jones Jr., a Farmville Republican, has tried to get the House of Representatives and President Bush to intervene. Pantano's mother is operating a Web site to build support for him and raise money. The Washington Times and the Fox network's national news have written and broadcast stories about Pantano, but neither appeared to cover the evidentiary hearing, which continues today. At the Article 32 hearing, the military equivalent of a grand jury proceeding, a Marine translator said that before the killings, the two suspects were interrogated separately, and both gave the same story: that they were visiting family at the house where they were detained. Other Iraqis inside, he said, told him the men were indeed relatives. Identified only as "Cpl. O," because of his counterintelligence work, the Marine said a search of the house turned up little more than an AK-47, which Iraqi families commonly keep for self-defense. He said he didn't know of any weapons or bomb-making material found in the vehicle. He also said that the men appeared to have been shot in the back. Charles Gittens, Pantano's lead civilian attorney, said after the hearing that Cpl. O hadn't been involved in the search of the vehicle and that he was mistaken, that more weapons were found. Asked why Pantano had to fire so many times -- he would have had to change magazines because they hold only 30 rounds each -- Gittens said he didn't want to second-guess someone whose life was in danger. "You want to make sure the guy who's trying to kill you is the one who dies," he said. On Tuesday, Pantano's defense lawyers were aggressive, objecting 19 times to issues ranging from the clothes dictated for the hearing (green camouflage rather than a dress uniform) to testimony that they said was not given under oath. In most cases, the investigating officer, Maj. Mark E. Winn, simply said the objection would be noted. The defense did win a couple, though, including a ban on prosecutors' use of the word "victims" to describe the dead Iraqis. Gittens said that if the killings were justified, the dead men obviously were not victims. Winn, whose role is similar to that of a judge, also agreed to produce a list of material the defense said it had been requesting for weeks. The defense also challenged the fitness of Winn himself after a series of questions to him about whether he had said during a Saturday conversation at an Emerald Isle bar that he wanted nothing to do with the case and had called Gittens an unpleasant name. Winn said he had a brief conversation about the case but didn't call Gittens a name or say he didn't want to be involved with the case. The hearing Tuesday was to gather information to help the commanding general of the 2nd Marine Division, Maj. Gen. Richard Huck, decide whether Pantano should face a court-martial. The hearing is expected to last several days. Winn could then take weeks or longer to sift the evidence and make his recommendation to Huck. Pantano had waived his right to the hearing, essentially telling the government to go ahead with the court-martial. It was an unusual move, and even rarer was the government's response: It decided to hold the hearing anyway. Pantano has an unorthodox background for a Marine officer. He was raised in a rough part of New York City but won a scholarship to a fancy prep school. After high school, he joined the Marines and served in the 1991 Persian Gulf War but later left the service. Eventually he landed a job with six-figure salary at a production company that produced such films as "Sling Blade." After the Sept. 11 terrorist attacks, though, he joined the Marines again. [ Staff writer Jay Price can be reached at jprice@newsobserver.com ] * Human Rights Watch -- April 2005 GETTING AWAY WITH TORTURE? COMMAND RESPONSIBILITY FOR THE U.S. ABUSE OF DETAINEES http://www.hrw.org/reports/2005/us0405/ "Prosecuting Some Soldiers, Belatedly" ch. 3, sec. 2: http://www.hrw.org/reports/2005/us0405/5.htm#_Toc101408095 "Until the publication of the Abu Ghraib photographs forced action, almost all military investigations into deaths and mistreatment in custody were languishing. No one implicated in the abuse of persons in custody in Afghanistan, Iraq or elsewhere, including in the killing of detainees, had been criminally prosecuted. Many personnel appear to have had their cases shelved or have been given inappropriate administrative reprimands, instead of facing criminal prosecution. "In the aftermath of the Abu Ghraib pictures, the United States initiated the prosecution of a number of soldiers and contactors for alleged crimes committed in Iraq (particularly Abu Ghraib)75 and Afghanistan. Pentagon officials told Human Rights Watch in March 2005 that out of 300 investigations initiated into abuse allegations, only 14 persons have been convicted by court-martial. And although 33 additional soldiers have been referred to trial by court-martial, 70 have received only "non-judicial punishments," such as reprimands, rank reductions, or discharge from the military, though many of the alleged abuse cases involved serious abuses and homicides.76 Earlier, in December 2004, the Pentagon told journalists that 130 American troops had been punished or charged for abuse of prisoners, a figure which apparently includes non-judicial punishments.77 "Homicide investigations have been extremely slow. As of February 2005, Army criminal investigators were reported to have conducted 68 detainee death investigations with 79 possible victims.78 Yet only two homicide cases have resulted in recommended courts martial for homicide; one has been postponed and in another, most of the implicated personnel were brought before non-judicial administrative hearings instead of court-martial, and most received only administrative punishments. Many cases involving detainee deaths in Afghanistan in 2002, over two-and-a-half years ago, have gone unresolved. In one case from Afghanistan, it appears that an army captain who "murdered" a detainee was simply discharged from the military, and his case was closed.79 "Meanwhile, no criminal investigations appear to have been commenced for abuses committed at Guantanamo Bay, at US-run "secret locations" around the world or in connection with the rendition of persons to third countries where they were likely to be tortured. With respect to CIA abuses, Porter J. Goss, who replaced George Tenet as director of Central Intelligence, told the Senate Intelligence Committee in February 2005 that "a bunch of other cases" were now under review by the CIA’s inspector general. No CIA officers have been charged in relation to alleged mistreatment, with the single exception of a CIA contractor charged in the death of detainee in Afghanistan in 2003." * Pravda -- May 27, 2005 NO ACCOUNTABILITY FOR BAGRAM By J. David Galland http://english.pravda.ru/mailbox/22/101/399/15548_bagram.html The U.S. Army staffed, operated, and condoned the sustained daily functions of a proverbial torture chamber at the Bagram Military Detention Center in Afghanistan in 2002. Now, 2½ years later, the officers responsible for that facility have yet to face the consequences for their leadership failures. The dark history of this interrogation and detention facility is mired in denial, gross command irresponsibility at all levels, and soldiers gone wild with rage. Combined, all factors resulted in the injury and in several cases, the death of detainees. During the course of interrogations, unlucky detainees were routinely abused by the assigned Military Intelligence interrogators from the 519th Military Intelligence Battalion from Fort Bragg, N.C. Augmenting the staff were Military Police soldiers from the Army Reserve's 377th MP Company from Cincinnati, Ohio. Regarded as potential sources of human intelligence information, detainees being held for interrogation were routinely kicked, beaten, hung by irons from immovable objects to include detention cell ceilings. Their humiliation was constant as a matter of policy. This policy was set by Army Capt. Carolyn A. Wood, an experienced Army interrogator then assigned to the 519th MI Battalion. Wood posted her own list of "interrogation rules of engagement" (ROE) at Bagram and later did the same when transferred to Abu Ghraib prison west of Baghdad. Wood's ROE were in effect until they were discovered to be inconsistent with interrogation rules published by the CJTF commander in Iraq, Lt. Gen. Ricardo Sanchez. Given the ghastly treatment that many detainees received at Abu Ghraib, some resulting in horrifying deaths, one may not be shocked with the revelations of abuse at the Bagram facility. Making the situation worse was the likelihood that a detainee in a field detention center may be completely innocent, and guilty of nothing more than being in the wrong place at the wrong time. This did not stop Army MI personnel, and MPs from exacting punishment on detained, injured, and shackled suSpcts that was no less than horrific. Such crimes, we now discover, were not rare. As reported by The New York Times last week, an Afghani named Habibullah was captured by an Afghan Warlord on Nov. 28, 2002. Two days later, he was delivered to the Bagram detention facility by CIA operatives who said that Habibullah was suSpcted of being a brother of a former Taliban commander from the southern Afghan province of Oruzgan. Maj. Bobby R. Atwell, a military police officer now assigned to the 16th MP Brigade at Fort Bragg, who was then serving as the provost marshal at Bagram, offered, in an interview with the NY Times, that Habibullah "had a piercing gaze and was very confident." Perhaps it was this perceived arrogance on the part of the detainee that led to his ultimate fate. When delivered to the Bagram facility, Habibullah was described as being in good health by the doctor who examined him. However, the senior intelligence operations chief at Bagram, Lt. Col. John W. Loffert Jr., later told Army investigators, "He was already in bad condition when he arrived." Since Loffert is not a doctor, the reader must assume one of two things: Either Habibullah had visible symptoms of poor health, or the officer lied. On his second day in the Bagram facility, interrogators declared Habibullah as being "uncooperative." According to MP Capt. Christopher M. Beiring, this following a day of being subject to the standard policy of "being hooded, shackled, and isolated for at least the first 24 hours." Soldiers who were assigned to the facility readily admitted, in classified investigative reports later released and published in the news media, that the guards kept prisoners awake by yelling or poking at them or banging on their cell doors. This went on while Habibullah was shackled by the wrists to the wire ceiling over his cell door. To which the question arises: Would you remain calm and cooperative at this juncture after a full day of this kind of welcome at a detention facility? When it came time for a rectal exam, and more heavy-handed treatment meted out by the guards, it is not surprising that Habibullah became violent. The detainee struck Sgt. Alan J. Driver Jr. - is a reserve MP from the 377th MP Co. - with a knee. That act probably sealed Habibullah's fate. Later that day, Spc. Willie V. Brand, a guard and not an interrogator with the 377th reported Habibullah as "uncooperative" and then saw fit to deliver a flurry of peroneal strikes in response. This involves kneeing the victim in the muscle group just above the victim"s knee. The next day, Brand found Habibullah uncooperative again, and assaulted the detainee a second time with more knee shots to the legs. As an MI soldier for more than 30 years, I can attest that nowhere in any Army Training Manual, Army Regulation, or Field Manual does the U.S. Army prescribe numerous and repeated peroneal strikes to the legs or a detainee - for any reason. It is interesting to note that Brand, a junior enlisted soldier, has been charged with assault and other crimes perpetrated against detainees. His civilian lawyer, John P. Galligan, is quick to point out that his client, Brand, was performing his duties consistently within the standard operating procedures that were in place at the Bagram facility. Given the widespread proliferation of catastrophic abuse directed at detainees, and numerous other corroborative facts, Galligan"s assertion has great credibility. The situation at Bagram continued to spiral out of control. By Dec. 3, 2002, Habibullah"s sustained defiance made him a open target for scores of peroneal strikes for being, again, "noncompliant." One M.P., not named in the N.Y. Times, stated that he gave Habibullah five peroneal strikes and another gave him three or four more, again, for being, "combative and noncompliant." The piece in the N.Y. Times revealed that some guards later asserted that he, Habibullah, had been hurt trying to escape. Some guards later asserted that he had been hurt trying to escape. How combative can a man be while shackled to the ceiling and chained to the floor by his feet and with a bag over his head? These were the conditions of Habibullah"s detention and restraint on Dec. 3, 2002, according to M.P. Sgt. James P. Boland. Later that date, Boland found Habibullah, slumped forward and held up by the chains attaching him to the ceiling. Sgt. Boland informed investigators of Habibullah"s condition. Boland returned and entered the cell with Spcialists Anthony M. Morden and Brian E. Cammack, both members of the 377th MP Company. Habibullah"s hood was removed and, according to Cammack, Habibullah then spat on him. After serving as a municipal police officer during 1972-80, I can attest that this is not an unusual event when dealing with detainees. I and most other police officers have been subjected to much worse. By his own admission, Cammack stated that, he "exploded" and yelled at Habibullah, "don"t ever spit on me again." Further, Cammack admitted that he began kneeing the shackled and swaying man in the thigh "maybe a couple" of times. Twenty minutes later, Habibullah was found dead in his cell by Sgt. Boland and Spc. Cammack. According to Boland, "Spc. Cammack appeared very distraught, the soldier was running about the room . hysterically." Immediately, another MP was dispatched to find a medic. When his assistance was requested by the MPs, Spc. Robert S. Melone, indignant at being bothered, reportedly said, "What are you getting me for? Call an ambulance instead!" Another medic was contacted, he responded, and found Habibullah on the floor, dead, his arms outstretched, eyes and mouth open wide. On Dec. 8, 2002, an autopsy performed on Habibullah revealed that his death was attributed to a blood clot that likely traveled to his heart and blocked the blood flow to his lungs. This clot was probably the result of the severe injuries to his legs, according to the autopsy findings. Significantly, the autopsy discovered bruises and abrasions on the victim"s chest, arms and head. Also present were deep contusions on his calves, knees and thighs. His left calf was marked by what appeared to have been the sole of a boot. The next victim arrived at Bagram on Dec. 5, 2002, only two days after Habibullah"s death. The Afghani, named Dilawar, had been detained on suspicion of firing rockets at a U.S. military site in Afghanistan. He was a taxi driver by profession. In keeping with Capt. Wood"s rules, both MI and MP escorts would render him a similar fate to that of Habibullah. Prison guards soon declared him "noncompliant," and his handling and incarceration were almost identical to that of the now deceased detainee Shackled in his cell, just prior to a scheduled interrogation, Dilawar reportedly spat on MP Spc. Corey E. Jones when the soldier brought him some water. Jones later asserted that as a result he began a series of knee and peroneal strikes to the detainee"s leg. In response to beating, Dilawar reportedly screamed out, "Allah, Allah, Allah." Other MP soldiers heard Dilawar screaming, and according to Jones" own admission, "They thought it was funny." Other MPs in the platoon showed up to give Dilawar repeated and sustained peroneal strikes over a 24-hour period. This was done just to hear Dilawar scream, "Allah," said Jones to CID Investigators. In a subsequent statement to CID, Spcialist Jones was vague about which M.P.'s had delivered the blows. His estimate was never confirmed, but other guards eventually admitted striking Mr. Dilawar repeatedly. On Dec. 8, 2002, the same day as Habibullah"s autopsy, Dilawar was subjected to his fourth interrogation with 21-year-old Spc. Glendale C. Walls II as the interrogator. Walls declared the detainee hostile because he would not admit to allegations that he had launched rockets at the American base. Dilawar was physically unable to hold his hand-cuffed hands above his head as instructed, which prompted another interrogator, Sgt. Selena Salcido, to forcibly slap Dilawar"s hands back up when they fell. Both interrogators then termed Dilawar evasive because he was unable to sit in a chair due to the injuries he had sustained at the hands of the guards during the past 24 hours. Dilawar was then repeatedly shoved against the wall by Walls and Salcido because he could no longer stand. According to an interpreter who was present, later identified as Ahmad Ahmadzai, Dilawar received a beating for about ten to fifteen minutes at the hands of Walls and Salcido. The thrashing was highlighted by the violent kicking of Dilawar in the groin, private areas, and one good drop kick, in which Salcido stepped back and advanced rapidly, kicking Dilawar. In published classified investigative reports, Salcido also stepped on Dilawar"s bare foot and pulled him about, physically, by his beard. Following this sustained attack and beating on Dilawar, which Ahmadzai described as no interrogation at all, Dilawar was returned to his cell and shackled to the ceiling until the next interrogation shift came on. Salcido instructed the MP escorts to shackle Dilawar to the ceiling in his cell. The next morning, Dec. 9, 2002, Dilawar was subjected to his final interrogation at which he was unable to kneel when ordered or physically comply with anything. This caused the interrogation session to erode to more physical abuse. An interrogator identified as Spc. Joshua Claus took over from Walls, who remained present. Dilawar"s last interrogation eroded into more abuse and assault and he was returned to his cell and re-shackled. Dilawar was found dead the next morning. Claus and Walls have both since been charged with assault, prisoner maltreatment, and lying to investigators. Shortly after Dilawar"s death Lt. Col. Elizabeth Rouse, the corner, who was a Major at the time, determined that Dilawar suffered injuries so extreme that one of his legs "had basically been pulpified." Rouse further commented regarding Dilawar"s fate and demise, "I"ve seen similar injuries in an individual run over by a bus." In February 2003, while making an effort deny the criminal actions of soldiers and leaders alike, Lt. Gen. Daniel K. McNeill, commander of allied forces in Afghanistan, released a statement that said, in part: "We are not chaining people to the ceilings .. I will say that our interrogation techniques are adapted, they are in accordance with what is generally accepted as interrogation techniques." As with the infamous guards at Abu Ghraib, one must ask, where was the supervision by the guards" chain of command? Who was in charge? Where were the officers and commanders during that month when two detainees were viciously beaten to death in a gruesome, painful and bizarre manner? Where was any level of senior noncommissioned officer leadership? Just who in hell was in operational charge of these Spcialists and junior NCOs? Who was setting policy and monitoring those policies? The answer is that Capt. Carolyn A. Wood, a vastly experienced U.S. Army intelligence officer. Wood, recall, was the officer in charge of interrogations and intelligence collection operations at Bagram in December 2002. Wood is currently assigned to duties as the adjutant of the 304th MI Battalion at Fort Huachuca, Ariz. A former enlisted soldier and former staff sergeant in the MI career field, Wood later became a commissioned officer. At Bagram, she wrote and posted her own "rules of interrogation" for detainees. In mid-2003, Wood was reassigned to Abu Ghraib prison with essentially the same duties. While there, she fell under the ineffective leadership of Lt. Col. Steven P. Jordan, of the 205th MI Brigade, which was responsible for detainee interrogations at the prison. Also, according to the N.Y. Times, in a piece written by Douglas Jehl and Eric Schmitt, which appeared on May 21, 2004, upon arriving at Abu Ghraib, Wood again posted her "interrogation rules and operational directives." Effectively, she had imported and applied many of the harsh methods that seemed to work for her unit at the Afghanistan site. The aftermath of the detainees" deaths at Bagram is sickeningly similar to that of the Abu Ghraib scandal: To date, only seven junior enlisted soldiers have been accused and or/punished for their involvement as part of Wood"s team in Afghanistan, although according published news reports, over 28 soldiers have been implicated in the two murders thus far. Spc. Cammack last week pleaded guilty at a court-martial at Fort Bliss, Tex., to assault and two counts of making a false statement relating to his assault on Habibullah. The military judge sentenced Cammack to three months in prison, reduced him to the rank of private, issued a fine, and gave him a bad-conduct discharge. As of this writing, the Army has made no move to prefer criminal charges against Capt. Wood, who - to no one"s surprise - was unavailable for comment. The illegal beating of detainees may be over, but the Army"s accountability scandal continues. * Footnotes from Human Rights First, BEHIND THE WIRE (March 2005): http://www.humanrightsfirst.org/us_law/PDF/behind-the-wire-033005.pdf 262 See Human Rights First, GETTING TO GROUND TRUTH (Sept. 2004), available at (accessed Jan. 19, 2005): http://www.humanrightsfirst.org/us_law/PDF/detainees/Getting_to_Ground_Truth_090 804.pdf see also Steven Lee Myers and Eric Schmitt, Wide Gaps Seen in U.S. Inquiries on Prison Abuse, N.Y. TIMES, June 6, 2004, available at (accessed Jan. 21, 2005): http://www.nytimes.com/2004/06/06/international/middleeast/06ABUS.html 265 Sgt James P. Boland, a military police reservist from the 377th MP Company, was charged Aug. 23 with Sgt. James P. Boland, a military police reservist from the 377th MP Company, was charged Aug. 23 with assault and dereliction of duty for the death of the two Afghan men in Bagram. Reservist Charged in Afghan Prison Abuse Case, MSNBC, Sept. 1, 2004, available at (accessed Jan. 21, 2005): http://www.msnbc.msn.com/id/5888743 David Passaro, an ex-CIA contractor has been charged for the death of Abdul Waili at a detention center in Asadabad in the Eastern District of Virginia. Curt Anderson, CIA Contractor Charged With Prisoner Abuse, ASSOC. PRESS., June 17, 2004, available at (accessed Jan. 20, 2005): http://www.washingtonpost.com/wp-dyn/articles/A49344-2004Jun17.html Elise Ackerman, 2 Reservists Face Punishmentsin Detainee's Deaths, KNIGHT RIDDER, Mar. 7, 2005, available at (ac- cessed Mar. 7, 2005): http://www.sunherald.com/mld/sunherald/news/nation/11074621.htm * MSNBC / AP -- November 12, 2004 NEW GUANTANAMO ABUSE CASES SURFACE Amnesty International calls for independent commission GUANTANAMO BAY NAVAL BASE, Cuba (AP) - Two new cases of detainee abuse have surfaced at the Guantanamo Bay prison camp, including one in which a U.S. military commander failed to properly investigate a prison guard who threw cleaning solvent on a terror suSpct. The guard threw the solvent on the prisoner in January and was demoted and reassigned in June, a month after Navy InSpctor General Vice Adm. Albert T. Church visited the remote outpost to investigate claims of abuse. The guard’s commanding officer also was reprimanded, military officials said. Another incident involved a guard who hit a detainee in October after the man allegedly spat on the guard and tried to bite him. The guard was demoted and reassigned the same month. "We have a process in place to review all allegation reports. Each report that alleges mistreatment at Guantanamo is taken seriously," said Army Lt. Col. Leon Sumpter, a spokesman. HIGH-RANKING CASE The commander who mishandled the solvent incident was an Army captain and the highest known ranking officer to be disciplined in an abuse case at the outpost in eastern Cuba, Sumpter said. The company commander generally is in charge of more than 130 soldiers. After the scandal at the U.S.-run Abu Ghraib prison in Iraq -- where American soldiers were photographed abusing detainees -- military officials at the U.S. Southern Command in Miami told The Associated Press there were three substantiated abuse cases at Guantanamo. The military last week provided details of eight substantiated cases of abuse by personnel from prison guards to a barber. The information came nearly two months after the AP asked for details of cases described in an August report by James R. Schlesinger, who headed a U.S. congressional committee to investigate abuses in Iraq, Afghanistan and Guantanamo. Despite the previous request, the two new cases only surfaced Thursday. INFORMATION DRIBBLING OUT "This problem won’t be solved by dribbling out bits of information over a period of months. The U.S. government needs to stop hiding behind closed doors and create an independent commission to look into all charges of abuse," said Jumana Musa of Amnesty International, one of four observers who came to Guantanamo to observe motions hearings ahead of military commissions, or trials. Other abuse allegations have been reported by detainees appearing before review tribunals evaluating their status as enemy combatants. An Afghan man testified Wednesday the Taliban killed members of his family and imprisoned members continued attacks in Guantanamo by beating him, spitting on him and throwing urine on him. Abuse allegations are a core complaint in a habeas corpus petition filed Monday by attorneys for Ibrahim Ahmed Mahmoud al Qosi of Sudan, an alleged paymaster for al-Qaida and accused associate of Osama bin Laden who is one of four people charged with conspiracy. He alleges Guantanamo interrogators wrapped prisoners in an Israeli flag, showed them pornographic photos and forced them to be present while others had sex. Al Qosi’s lawyers did not say in which cases their client witnessed the abuse, who had sex in detainees’ presence or how many incidents were reported. ALLEGATION: 'HELL ROOM' Al Qosi’s petition in U.S. District Court in Washington is one of several challenges that could halt his trial, tentatively scheduled for Feb. 8. Al Qosi’s lawyers said in their petition -- one of more than 60 pending cases -- that interrogations often occurred in an area detainees called the "Hell Room," where pornographic pictures were displayed. They said methods included "taunting detainees in sexually humiliating ways, including having sex in detainees’ presence or having female interrogators rub their bodies suggestively against detainees." Cases in the congressional report included a female interrogator who climbed onto a detainee’s lap and ran her fingers through his hair, and another detainee whose knees were bruised from being forced to kneel repeatedly. The report followed Church’s visit in May, when he said he found conditions to be professional and humane but acknowledged that his visit was too short to investigate whether more abuses had occurred. Church cited eight "minor infractions." Four involved prison guards, three involved interrogators and one involved a barber, who it was later revealed gave detainees two reverse Mohawk-style haircuts. The perpetrators were demoted, reprimanded or sent for more training. * CBS News / AP -- November 5, 2004 US DETAILS 8 GITMO ABUSE CASES GUANTANAMO BAY NAVAL BASE, Cuba (AP) - A detainee was forced to kneel so many times he was bruised, a barber gave reverse Mohawks and a female interrogator ran her fingers through a prisoner's hair and sat in his lap, the U.S. government says in the most detailed accounting of eight abuse cases at its Guantanamo Bay prison for terror suSpcts. Those responsible for the abuse have been demoted, reprimanded or sent for more training, according to an 800-word U.S. military response to a written query from The Associated Press. Allegations of mistreatment at Guantanamo, where 550 terror suSpcts have been held for nearly three years, surfaced after the abuse scandal broke last year at the U.S.-run Abu Ghraib prison in Iraq, where pictures showed beatings and sexual humiliation of Iraqi prisoners. The details of abuse at Guantanamo come as lawyers for several prisoners challenge evidence presented by the government, saying some could have been obtained by force. Only four prisoners have been formally charged at Guantanamo, where most are held without charge or access to lawyers. The military has reported 34 suicide attempts among detainees, though none has been reported since January. Guantanamo's new commander says lessons have been learned from past abuses cases and troops are treating detainees humanely with a rigorous system of checks and balances. "They've not been mistreated, they've not been tortured in any reSpct," Army Brig. Gen. Jay Hood said in an interview Wednesday. Human rights monitors are not convinced. "We're confident that there's more information out there that hasn't been released," said Jameel Jaffer of the American Civil Liberties Union, which has obtained nearly 6,000 documents about procedures at U.S.-run prisons. He was in Guantanamo to observe pretrial hearings. Maj. Gen. Geoffrey Miller, now in charge of U.S.-run prisons in Iraq, commanded the Guantanamo prison from November 2002 to March 2004 with a mandate to get better intelligence. Most abuses reported in August by James R. Schlesinger, who headed a U.S. Congressional committee to investigate abuses in Iraq, Afghanistan and Guantanamo, occurred under Miller's watch. The Department of Defense, responding to an AP query made nearly two months ago, this week provided details of the eight Guantanamo abuses cases Schlesinger cited. No names were given. In one case, a female interrogator took off her uniform top to expose her T- shirt to a detainee, ran her fingers through his hair and climbed on his lap in April 2003. A supervisor monitoring the session terminated it, and the woman was reprimanded and sent for more training, the military said. The same month, an interrogator told military police to repeatedly bring a detainee from a standing to kneeling position, so much that his knees were bruised, the government said. The interrogator got a written reprimand and Miller reportedly stopped use of that technique. Also that month, a guard was charged with dereliction of duty and assault after a detainee assaulted another guard. After the detainee was subdued, the guard punched the prisoner with his fist. He was demoted. In a separate case, a guard was charged with assault after he sprayed a detainee with a hose when the prisoner allegedly tried to throw water from his toilet at him in September 2002. The guard was reduced in rank and reassigned. Another female interrogator wiped dye from a red magic marker on a detainee's shirt, telling him it was blood, after he allegedly spat on her. She received a verbal reprimand in early 2003. In March 2003, a military policeman used pepper spray on a detainee allegedly preparing to throw unidentified liquid on an officer. The policeman was acquitted by a court martial. Incidents this year include a military policeman who squirted a detainee with water in February, and a camp barber who gave two "unusual haircuts." The haircuts were reverse Mohawks, according to a government official who spoke on condition of anonymity. The barber gave the cuts to frustrate detainee efforts to wear their hair the same way to demonstrate unity, the government said. The barber and his company were reprimanded. Air Force Lt. Col. Sharon Shaffer, defense attorney for a Guantanamo prisoner, announced Thursday that she would file a petition in federal court challenging her client's detention and alleging systematic abuse at the prison. She represents Ibrahim Ahmed Mahmoud al-Qosi of Sudan, an alleged al Qaeda paymaster whose conspiracy trial is scheduled for February. "The abuse allegations at Guantanamo are a matter of growing concern," Shaffer said. "He was constantly being told he would be sent to Egypt to be interrogated, where many of the detainees believed they would be killed. And he was forced to sit for hours in the freezing cold." At least one military insider at Guantanamo has gone public with allegations of abuse -- a military police officer who was injured after going undercover as a detainee. National Guardsman Sean Baker said the attack occurred in November 2002, the month after Miller arrived in Guantanamo, when he was told to put on an orange detainee jumpsuit, get in a cell and wait for an Initial Response Force -- the teams used to subdue misbehaving detainees. From under the bunk, Baker heard the extraction team come in, he said in his latest comments during a CBS television program aired Wednesday. "My face was down. And of course, they're pushing it down against the steel floor, you know, my right temple, pushing it down against the floor," Baker told CBS. The incident was purportedly recorded, one of some 500 hours of tapes that the military has refused to publicly release. Baker said he tried to tell his attackers he was a soldier but they repeatedly slammed his head against the floor. Baker was airlifted to a naval hospital in Virginia where doctors said he suffered a brain injury. He has been plagued by seizures since, he said. * CNN -- June 22, 2004 US INDICTS CIA CONTRACTOR IN AFGHANISTAN PRISON DEATH By Terry Frieden http://www.cnn.com/2004/LAW/06/17/afghan.indictment/ WASHINGTON (CNN) -- A contractor working for the CIA has been indicted on charges stemming from the death of a prisoner at a prison in Afghanistan, Justice Department officials said. It is the first time charges have been brought against a civilian since the reports of alleged prison abuse in Iraq and Afghanistan surfaced in the past few months. The four-count indictment says the contractor, David Passaro, 38, beat an Afghan prisoner identified as Abdul Wali, who had surrendered voluntarily at the front gate of a U.S. detention facility near Asadabad in the northeastern Kunar Province on June 18, 2003. The remote site, which had been under frequent rocket attack, is about five miles from the Pakistani border, where remnants of the Taliban and al Qaeda remain active. A federal grand jury in Raleigh, North Carolina, returned the indictment, which includes two counts of assault causing serious injury and two counts of assault with a deadly weapon. Each count carries a maximum penalty of 10 years in prison and a $250,000 fine upon conviction. Federal law allows civilian charges to be brought against U.S. citizens for crimes overseas if they are not under military jurisdiction. After a brief court appearance Thursday, Passaro was ordered to remain in custody pending a detention hearing set for next Tuesday. Attorney General John Ashcroft said at a Thursday news conference that Wali was suspected of participating in the attacks on the Asadabad base and that Passaro's job was to assist military personnel detain prisoners at the base. While in custody, Wali was interrogated by Passaro about the rocket attacks, Ashcroft said. "During these interrogations on June 19 and June 20, it is alleged that Passaro beat Wali repeatedly using his hands and feet and a large flashlight," Ashcroft said, quoting from the indictment. "Abdul Wali died in a cell on Asadabad Base on June 21, 2003," the indictment says. Passaro, a former U.S. Army Ranger, had arrived at the base at the beginning of June, a U.S. official said. Ashcroft said the case would be fully investigated. "President Bush has made it clear that the U.S. will not tolerate criminal acts of brutality such as those alleged in this indictment," he said in a prepared statement. "The types of illegal abuse detailed run counter to our values and our policies and are not representative of our men and women in the military and associated personnel serving honorably and admirably for the cause of freedom." Passaro, of Lillington, North Carolina, was arrested Thursday morning at his workplace in Fayetteville. Officials said Passaro was to have an initial appearance Thursday afternoon at the federal courthouse in Raleigh. The Center for Constitutional Rights (CCR), a New York-based legal advocacy group, said it sent a letter to the Pentagon last year demanding an investigation into the death of Wali. The November 12 CCR letter also called for an investigation into the deaths of two Afghan detainees in U.S. custody at the Bagram military base in Afghanistan. The CIA inspector general has referred several cases to the Justice Department for investigation. A U.S. official said Thursday that Passaro had worked as a contractor for the CIA since December 2002. CIA spokesman Mark Mansfield issued a statement saying, "We take allegations of wrongdoing very seriously, and it is important to bear in mind that CIA immediately reported these allegations to the agency's inspector general and the Department of Justice." U.S. officials say there are a number of private contractors working for the CIA in Afghanistan and Iraq. They declined to say how many. CNN National Security Correspondent David Ensor contributed to this report. * Savedave.us -- Letter from DAVID PASSARO in prison: http://www.savedave.us/journal.html * <5> SOURCES Reuters List of Abu Ghraib Cases: http://www.alertnet.org/thenews/newsdesk/N12285274.htm International Security Law Project Home: http://www.cdi.org/news/law/index.cfm # # # [ PEGC - 2005.08.05 - CBG ]