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Iraqis see U.S. sham as abuse trials open

By Todd Richissin and Gail Gibson - Baltimore Sun Staff
June 21, 2004

BAGHDAD, Iraq - Court-martial proceedings against Maryland-based U.S. soldiers accused of abusing Iraqi prisoners are to begin here today, but among many Iraqis the verdict on the legal process is already in: It's a sham.

Their evidence has little to do with what went on inside Abu Ghraib prison and other facilities and more to do with conditions outside those walls more than a year after American promises of a new Iraq were made: Government buildings are still charred shells, clogged streets are still without traffic signals, gasoline supplies are limited, hospitals are filled with maimed Iraqis, morgues are overflowing with the dead.

Beyond that, many Iraqis doubt punishment will be directed where they think it belongs - much higher in the chain of command than the low-ranking soldiers charged in the beating and abuse of detainees.

"The Americans have lied about everything - about helping Iraq," said Jaleel Atwan, 44, covered in sweat as he arranged fruit at his market in Baghdad. "We know now that Americans are not people who tell the truth. Tell me, why should Iraqis believe anything the Americans say?"

Today, three reservists from the 372nd Military Police Company, based near Cumberland, are scheduled to appear at the Baghdad Convention Center for a military proceeding in which their attorneys are expected to ask that the charges be dropped or, short of that, the trials be moved. A fourth soldier faces charges at Fort Bragg, N.C., beginning tomorrow.

U.S. officials, including President Bush, have said the trials will show that the United States does not tolerate such behavior.

Unkept promises

In the markets of Baghdad, though, and on the city's street corners, the lack of faith in the proceedings stems from a general distrust of the United States because of promises unfulfilled. The promised liberation from dictator Saddam Hussein has come true, but for many Iraqis, day-to-day conditions are more difficult and dangerous. Daily bombings and attacks have left dozens of civilians dead in recent weeks.

The courts-martial seem unlikely to placate many Iraqis. Instead, they are likely to be another source of mistrust and a reminder of the humiliation, abuse and death that Iraqis faced at the hands of Americans in a prison first made notorious as Hussein's most brutal torture and execution facility.

"It's a fake trial, to make the Americans look better to the world," said Saad Na'shat, 52, a civil affairs employee. "They are taking young soldiers who were following orders and say they will punish them. But they will not be punished in 100 years, and the people who gave the orders will never be punished in 1 million years."

Attorneys for the soldiers facing court-martial are expected to make arguments echoing such complaints, heard repeatedly on the streets of Baghdad: The soldiers are paying the price for decisions made at much higher levels.

Among those facing charges are two of the soldiers said to be ringleaders for the abuses, Staff Sgt. Ivan L. Frederick II and Spc. Charles A. Graner Jr.

Frederick, 37, who in civilian life is a guard at Buckingham Correctional Center in Dillwyn, Va., is accused of forcing Iraqi detainees to masturbate in front of soldiers and their cameras and of punching one so hard that the man required medical attention to be certain he was not in cardiac arrest.

He is also the soldier, the military says, who attached wires to a detainee's hands and genitals and made him stand on a box, creating a picture that has been published around the world.

Following orders

The sergeant's family and attorney, Gary Myers, say Frederick is being made a scapegoat after following orders from military intelligence officers to "soften up" detainees so they would be more willing to provide information.

Graner, 35, is accused of supervising much of the abusive behavior and was among the most feared of the American guards at Abu Ghraib, according to military investigators.

His face has become recognizable from published photographs of him standing, arms folded, over a pile of naked Iraqi men and from another of him flashing a thumbs-up as detainees were piled into a pyramid.

He faces a charge, among others, of committing an indecent act by watching detainees commit a sexual act. And military investigators have said that among the evidence collected is a video of him having consensual sex with Pfc. Lynndie R. England, who faces proceedings at Fort Bragg, N.C., tomorrow.

Graner's family has said that he, too, is being made a scapegoat and that he did nothing he was not ordered to do.

"Just think of what was going on at the time and what a few reservists from the hills were asked to do," said Paul Bergrin, an attorney representing Sgt. Javal Davis, the third soldier scheduled to appear in court here this week. "You have your military friends being killed one after another, you have Saddam Hussein still out there somewhere, and you have virtually every single senior military officer - not only in Iraq but also in the Pentagon - telling these guys to loosen the detainees up, to hood them, to get the damn intelligence."

Bergrin said Davis, who attended Morgan State University in Baltimore for a time, was following orders from military intelligence. Several military intelligence officers have come forward in recent weeks to say that colleagues in their units, in charge of interrogations, encouraged the abuses.

"So now you have the intelligence guys, the CIA guys, saying this is all right," Bergrin said. "Do you think the answer is, when this all gets out, to hold a kid like this responsible?"

U.S. authorities have made a point of holding court proceedings for the soldiers in Baghdad, where the Iraqi people can follow the trials and see the American justice system at work, though cameras have been excluded from the courtroom.

A hearing in N.C.

For now, that has left only England, who is six months' pregnant with Graner's child, as the public face of the abuse scandal in the United States.

England, 21, of Fort Ashby, W.Va., was transferred this year to Fort Bragg, where military officers will conduct an Article 32 hearing beginning tomorrow to determine whether she should face a court-martial.

England, shown in photographs from Abu Ghraib holding a leash tied to the neck of a naked prisoner and pointing at the genitals of another, faces charges that include conspiring to mistreat Iraqi prisoners and assaulting detainees.

The young soldier has become a polarizing figure. While the photos that show her smiling and giving the thumbs-up sign over naked inmates outraged the nation, her family and friends insist that England was following orders from officers, none of whom face criminal charges.

"That's not the type of person she is," said her sister, Jessica Kleinstiner, the day England was charged. "If any one of you would need money for anything, my sister would give you money without wanting money in return - that's how she is."

England's Article 32 hearing, roughly equivalent to a preliminary hearing in civilian courts, is expected to last two to three days at the sprawling base in Fayetteville, and will be the first chance for the public to hear a detailed account of the events that led to the criminal charges.

England's attorneys will be allowed to cross-examine witnesses, but she is not expected to testify. In her only public interview, broadcast by a Denver television station, England contended that the abuses and photos were ordered by superiors. Asked who gave the orders, she said only: "Persons in my chain of command."

In Baghdad, Haider Abbas, a 38-year-old truck driver, said he is surprised that U.S. soldiers have been charged but will never believe that those truly responsible will be punished.

Even if the soldiers are sentenced to prison, he said, as soon as they are returned to the United States they will be freed.

"I think they will be freed in a deal," Abbas said. "The deal is, 'Don't say who told you to do it, and after the big show you can run free.'"

Sun staff writer Gail Gibson reported from Fort Bragg, N.C.
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Retired Diplomats, Military Commanders Fault Bush's Leadership
Administration Unable to Handle Global Leadership, Former Ambassadors, Generals Say
By Peter Slevin
Washington Post Staff Writer - Wednesday, June 16, 2004; 3:32 PM

The Bush administration does not understand the world it faces and is unable to handle "in either style or substance" the responsibilities of global leadership, an eminent group of 27 retired diplomats and military commanders charged today.

"Our security has been weakened," the former ambassadors and four-star commanders said in a statement read at a packed Washington news conference. "Never in the two and a quarter centuries of our history has the United States been so isolated among the nations, so broadly feared and distrusted." The statement fit onto a single page, but the sharp public criticism of President Bush was striking, coming from a bipartisan group of respected former officials united in anger about U.S. policy.

The commentary emerges at a time when public doubt about the U.S. invasion of Iraq and Bush's handling of national security has grown and faith in Bush's leadership has fallen, as measured by opinion polls. State Department spokesman Richard Boucher said the administration "has a record that it's happy to stand on." He said United States fights terrorism with "diplomatic, military, intelligence and law enforcement means." As for the group of former government officials drafting a strong statement, Boucher said it is "within their rights, within their freedom. Well, it's a free country. They can do that if they want, just like any other citizens. "

Also today, the panel investigating the Sept. 11, 2001, terrorist attacks said it found "no credible evidence" that former Iraqi leader Saddam Hussein had worked with al Qaeda on the Sept. 11 attacks or any other missions in the United States. Significant players in the Bush administration have worked to connect Hussein in the public's mind with Sept. 11 and anti-American terrorism, an effort that largely succeeded. As recently as this week, Vice President Cheney said Hussein had "long-established ties" with al Qaeda. "Why the vice president continues to make that claim beats me. I have no idea," said Phyllis Oakley, a signatory of the anti-Bush statement and a former director of the State Department's intelligence office. Oakley and the other 26 signatories described Bush administration "manipulation of uncertain intelligence about weapons of mass destruction" and "a cynical campaign to persuade the public that Saddam Hussein was linked to al Qaeda and the attacks of Sept. 11."

The new group, which calls itself Diplomats and Military Commanders for Change, believes Bush must be replaced for the United States to regain credibility and strengthen valuable foreign alliances. They said they did not coordinate their message with the campaign of Democratic presidential candidate John F. Kerry, but they made clear that they support the Massachusetts senator's quest. Gen. Merrill A. "Tony" McPeak, former U.S. Air Force chief of staff, said he was the Oregon chairman of Republican Robert J. Dole's presidential campaign in 1996 and joined Veterans for Bush in 2000. Now he is advising Kerry. "This administration has gone away from me, not vice versa," McPeak told reporters.

A consistent theme of the statement and the news conference at the National Press Club was that the Bush administration has taken steps that have alienated allies and undermined U.S. interests -- ultimately making the world a more dangerous place for Americans. Noting the arrests without trial of Muslims since Sept. 11 and the abuses at Abu Ghraib prison in Iraq, former U.S. ambassador to Saudi Arabia Chas Freeman criticized a "post 9/11 atmosphere of hysteria." "I think we will in time come to be very ashamed of this period in history," Freeman said, "and of the role some people in the administration played in setting the tone and setting the rules." Donald McHenry, former ambassador to the United Nations, answered a question about the effectiveness of U.S. public diplomacy, a special focus of the Bush administration, especially in the Muslim world. "You can embark on all the public diplomacy you wish, but if there is no substance to the policy, it's very difficult to sell," McHenry said. '

"You can't sell product no matter how extensive your P.R. efforts are if the product is lousy," McHenry continued. "I think that, unfortunately, is the situation in which the United States finds itself in many parts of the world." The former diplomats and military commanders said the United States suffers from "close identification" with autocratic governments in the Muslim world and "the perception of unquestioning support for the policies and actions of the present Israeli government." The group called for greater balance. Among those who signed the statement are Adm. William J. Crowe, chairman of the Joint Chiefs of Staff under Ronald Reagan, and Marine Gen. Joseph P. Hoar, appointed by George H.W. Bush to lead U.S. forces in the Middle East. The participants include a pair of former ambassadors to the Soviet Union, two former ambassadors to Israel, two former ambassadors to Pakistan and Adm. Stansfield Turner, onetime director of the Central Intelligence Agency. Bush from the outset "adopted an overbearing approach to America's role in the world, relying on military might and righteousness, insensitive to the concerns of traditional friends and allies, and disdainful of the United Nations," the statement says. "Motivated more by ideology than by reasoned analysis, it struck out on its own."
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Lawyers Decided Bans on Torture Didn't Bind Bush
By NEIL A. LEWIS and ERIC SCHMITT
New York Times
Washington, June 7 — A team of administration lawyers concluded in a March 2003 legal memorandum that President Bush was not bound by either an international treaty prohibiting torture or by a federal antitorture law because he had the authority as commander in chief to approve any technique needed to protect the nation's security.

The memo, prepared for Defense Secretary Donald H. Rumsfeld, also said that any executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons.

One reason, the lawyers said, would be if military personnel believed that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful."

"In order to respect the president's inherent constitutional authority to manage a military campaign," the lawyers wrote in the 56-page confidential memorandum, the prohibition against torture "must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority."

Senior Pentagon officials on Monday sought to minimize the significance of the March memo, one of several obtained by The New York Times, as an interim legal analysis that had no effect on revised interrogation procedures that Mr. Rumsfeld approved in April 2003 for the American military prison at Guantánamo Bay, Cuba.

"The April document was about interrogation techniques and procedures," said Lawrence Di Rita, the Pentagon's chief spokesman. "It was not a legal analysis."

Mr. Di Rita said the 24 interrogation procedures permitted at Guantánamo, four of which required Mr. Rumsfeld's explicit approval, did not constitute torture and were consistent with international treaties.

The March memorandum, which was first reported by The Wall Street Journal on Monday, is the latest internal legal study to be disclosed that shows that after the Sept. 11 terrorist attacks the administration's lawyers were set to work to find legal arguments to avoid restrictions imposed by international and American law.

A Jan. 22, 2002, memorandum from the Justice Department that provided arguments to keep American officials from being charged with war crimes for the way prisoners were detained and interrogated was used extensively as a basis for the March memorandum on avoiding proscriptions against torture.

The previously disclosed Justice Department memorandum concluded that administration officials were justified in asserting that the Geneva Conventions did not apply to detainees from the Afghanistan war.

Another memorandum obtained by The Times indicates that most of the administration's top lawyers, with the exception of those at the State Department and the Joint Chiefs of Staff, approved of the Justice Department's position that the Geneva Conventions did not apply to the war in Afghanistan. In addition, that memorandum, dated Feb. 2, 2002, noted that lawyers for the Central Intelligence Agency had asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives.

The March memo, a copy of which was obtained by The Times, was prepared as part of a review of interrogation techniques by a working group appointed by the Defense Department's general counsel, William J. Haynes. The group itself was led by the Air Force general counsel, Mary Walker, and included military and civilian lawyers from all branches of the armed services.

The review stemmed from concerns raised by Pentagon lawyers and interrogators at Guantánamo after Mr. Rumsfeld approved a set of harsher interrogation techniques in December 2002 to use on a Saudi detainee, Mohamed al-Kahtani, who was believed to be the planned 20th hijacker in the Sept. 11 terror plot.

Mr. Rumsfeld suspended the harsher techniques, including serving the detainee cold, prepackaged food instead of hot rations and shaving off his facial hair, on Jan. 12, pending the outcome of the working group's review. Gen. James T. Hill, head of the military's Southern Command, which oversees Guantánamo, told reporters last Friday that the working group "wanted to do what is humane and what is legal and consistent not only with" the Geneva Conventions, but also "what is right for our soldiers."

Mr. Di Rita said that the Pentagon officials were focused primarily on the interrogation techniques, and that the legal rationale included in the March memo was mostly prepared by the Justice Department and White House counsel's office.

The memo showed that not only lawyers from the Defense and Justice departments and the White House approved of the policy but also that David S. Addington, the counsel to Vice President Dick Cheney, also was involved in the deliberations. The State Department lawyer, William H. Taft IV, dissented, warning that such a position would weaken the protections of the Geneva Conventions for American troops.

The March 6 document about torture provides tightly constructed definitions of torture. For example, if an interrogator "knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith," the report said. "Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his control."

The adjective "severe," the report said, "makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be `severe.' " The report also advised that if an interrogator "has a good faith belief his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture."

The report also said that interrogators could justify breaching laws or treaties by invoking the doctrine of necessity. An interrogator using techniques that cause harm might be immune from liability if he "believed at the moment that his act is necessary and designed to avoid greater harm."

Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration's confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.

Jamie Fellner, the director of United States programs for Human Rights Watch, said Monday, "We believe that this memo shows that at the highest levels of the Pentagon there was an interest in using torture as well as a desire to evade the criminal consequences of doing so."

The March memorandum also contains a curious section in which the lawyers argued that any torture committed at Guantánamo would not be a violation of the anti-torture statute because the base was under American legal jurisdiction and the statute concerns only torture committed overseas. That view is in direct conflict with the position the administration has taken in the Supreme Court, where it has argued that prisoners at Guantánamo Bay are not entitled to constitutional protections because the base is outside American jurisdiction.
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