Higher Officials Unlikely to Be Tried

By Jonathan Peterson

Los Angeles Times

January 16, 2005

WASHINGTON — The jail term meted out to Army Spc. Charles A. Graner Jr. for abuses at Abu Ghraib prison may prove to be the stiffest criminal punishment that emerges from the entire scandal, according to experts on military justice.

To some, the low-level Army reservist may look like the fall guy in a debacle that embarrassed the United States throughout the world and tainted the image of American forces in Iraq. Yet analysts said that for now, at least, it was doubtful that higher-level officials would be found guilty beyond a reasonable doubt of criminal wrongdoing at the Iraqi prison where Graner ran a notorious, late-night guard shift.

"This is the guy that it seems easiest for us to blame," said Beth Hillman, a specialist on military justice at Rutgers University School of Law in Camden, N.J., of the low-level reservist who was sentenced to 10 years in prison. "That doesn't mean there aren't other people who should pay a price for their role in making this possible."

The question of responsibility for sadistic behavior at Abu Ghraib leads to murky distinctions between foot soldiers such as Graner, who committed the abuses, and senior officials who failed to prevent them and denied specific knowledge.

More broadly, some point out, the crimes at Abu Ghraib occurred as U.S. policy became increasingly tolerant of rough interrogation practices that were previously forbidden. Approved practices, such as forcing detainees to wear hoods or creating extreme physical discomfort — though controversial — did not include the sexual humiliation and other tactics captured in photographs.

"I've seen no convincing evidence that higher-ups authorized the forms of abuse that made Abu Ghraib the story it is," said Peter D. Feaver, a political scientist at Duke University and author of "Armed Servants: Agency, Oversight and Civil-Military Relations."

"That doesn't mean there aren't failures up the chain of command," he said.

To be sure, the saga continues to unfold, and it is too soon to predict with certainty where ongoing investigations might lead and who might face future punishment. The Justice Department recently began investigating FBI reports of abusive interrogations by the military of prisoners at the naval facility at Guantanamo Bay, Cuba, and in Iraq.

Brig. Gen. Richard Formica, meanwhile, has been conducting a Pentagon investigation of abuse of prisoners by U.S. Special Forces in Iraq. Three other soldiers at Abu Ghraib — including Pfc. Lynndie R. England who was photographed holding an Iraqi prisoner on a leash — have yet to face court-martial proceedings.

Another four have pleaded guilty and been sentenced for crimes at Abu Ghraib.

Although the United States has little tradition of holding senior commanders criminally accountable for abuses committed by their subordinates, one example involved an enemy general.

U.S. officials charged Japanese Gen. Tomoyuki Yamashita with failing in his duty as a commander to prevent atrocities committed by Japanese troops in the Philippines in 1944 and 1945. Yamashita was executed in 1946.

"It was never clear — at least in my mind — that Yamashita ordered the things that went wrong," Hillman said Saturday.

In the case of Abu Ghraib, some observers say that the acts for which Graner and other soldiers are being held accountable should be understood in the context of broader U.S. policy directives. Starting in Afghanistan, American officials established new rules for interrogation designed to soften up prisoners more harshly than in the past.

The approach continued at Guantanamo Bay, where for example, the use of intimidating guard dogs was among approved procedures.

In August 2004, a report by an independent panel headed by former Defense Secretary James R. Schlesinger found that such practices "migrated" to Iraq. While finding institutional and personal responsibility "at higher levels," the report stopped short of accusing top military and civilian leaders of condoning the abuses committed by Graner and others.

There has been little indication that the White House plans to hold top civilian officials in the Defense Department responsible for abuses at the prison.

"Stuff like this doesn't happen in a prison in Iraq out of the blue," said Kevin J. Barry, a retired military judge and co-founder of the National Institute of Military Justice. "Surely, you can throw Graner in jail. But it would be a horrible injustice if Graner goes to jail for a long period of time and nobody higher than him is ever held accountable."

In an attempt to ease his sentence, Graner on Saturday sought to make a similar point, noting that military intelligence officials had been given authority over Abu Ghraib and arguing that he was abiding by their instructions.

"If [military intelligence] asks you to do this, it needs to be done," he said during the sentencing hearing at Ft. Hood, Texas. "They're in charge. Follow their orders."

Although the low-level guards so far have faced the brunt of criminal charges, higher-level officials may be paying a less severe, if personally painful, price.

For example, Lt. Gen. Ricardo Sanchez, whose responsibilities included detention facilities in Iraq, was cruising toward a prestigious fourth star until revelations about Abu Ghraib stalled his rise and jeopardized any future promotion.

"The military has various ways to punish people," said Eugene R. Fidell, a Washington lawyer and expert on military justice. It may be different for a senior officer than for a junior one. "An admiral or general may be forced into retirement or lose a pay grade," he said.

To many, such an allocation of justice may seem less than satisfying. But given the high burden of proof for criminal convictions, it may be what is in store.

"Are we asking the system to undo the public relations disaster of Abu Ghraib? That can't happen," Feaver said. "But we can ask the system to demonstrate that when U.S. soldiers misbehave there are consequences. That goal is achievable."