The New York Times
August 27, 2004
The Defense Department report on the abuses at Abu Ghraib prison, issued Wednesday, will almost certainly give rise to criminal charges or disciplinary action against many of the more than 50 people found responsible. But the report's most immediate impact will probably be in the handful of pending cases against low-level military police personnel.
One of the seven soldiers charged, Specialist Jeremy C. Sivits, has pleaded guilty. Another, Staff Sgt. Ivan L. Frederick II, has said he plans to plead guilty to some charges.
Lawyers for the remaining five say the report's findings lend support to their central defense - that they were following orders from military intelligence officers and others.
"The M.P.'s being prosecuted claim their actions came at the direction of M.I.," the report said, referring to military intelligence. "Although self-serving, these claims do have some basis in fact."
Richard A. Hernandez, a lawyer for Pfc. Lynndie R. England, one of the accused soldiers, said the report was a vindication.
"This was not seven rogue soldiers," Mr. Hernandez said. "It clearly is more than that. They were getting orders from M.I."
"It makes it a little easier for us," he added. "We can clearly say that she was following orders. Now the question is whether the orders were lawful and, if not, whether she had reason to know they were unlawful."
Legal experts differed about whether the report helped or hurt Private England and the other accused military police officers.
"Many of the accused can now legitimately claim that the orders they received, either informally or directly, were legitimate," said Michael F. Noone Jr., a law professor at Catholic University and an expert in military justice.
"But people are still going to say, 'You've got to be kidding. Are you serious that people ordered you to make people masturbate?' "
Gary D. Solis, a former military judge who teaches law at the United States Military Academy at West Point, said the defendants should take no comfort from the report.
"It provides no help for those whose cases are pending," Mr. Solis said. "With each new report, we see a new facet of improprieties and illegalities. The 'following orders' defense was a slim reed to begin with. These reports only add fuel to the prosecutorial fire.
"It is true that military intelligence was there," he said. "The C.I.A. was there. But their pressure and even their urgings don't let these individuals off the hook."
To succeed in a following orders defense, Professor Solis said, the soldiers would have to prove that they actually received an order and that it was from a superior. He said there was no evidence to suggest either.
"Even if they could meet those two challenges," he added, "they would have to show they acted reasonably in following what they understood to be a lawful order."
The report, by Maj. Gen. George R. Fay and Lt. Gen. Anthony R. Jones, concluded that 42 military intelligence soldiers, officers, medics and civilian contractors bore some degree of responsibility for the abuses. It also said four more military police officers had a role in the abuses.
The findings were forwarded to military commanders and the Justice Department for possible criminal charges and disciplinary actions, and additional prosecutions beyond the first seven are inevitable, legal experts said.
Military personnel face a range of potential punishments, including reprimands, extra duty, the loss of rank or pay, discharge and incarceration. Only the most serious charges require a court martial.
Civilians, including government employees like C.I.A. agents and civilian contractors, are not subject to the military justice system. But the Justice Department may file criminal charges against them in federal courts in the United States, though defendants may contest those courts' jurisdiction over events in Iraq.
The next round of charges are likely to be filed against military intelligence soldiers.
"You'll see junior officers and enlisted folks being charged," said Neal A. Puckett, who represents Brig. Gen. Janis Karpinski, commander of the 800th Military Police Brigade at Abu Ghraib. "You'll see a bunch of them making deals, if the charges are relatively minor. I would expect at least as many new cases as there are existing ones."
Mr. Puckett said the report released on Wednesday, which focused on military intelligence personnel rather than military police, was unlikely to give rise to disciplinary or other action against his client.
The report paints a picture of a prison in chaos, and that may help current and future defendants. But other aspects of it may affect potential jurors negatively, said Eugene R. Fidell, president of the National Institute of Military Justice.
"Questions may well be raised," he said, "about the ability of people currently under charge or about to be charged to obtain a fair trial."
The report may also renew requests for a change of venue. Except for the court martial of Private England, the remaining courts-martial are likely to be held in Baghdad. That may be just as well, Professor Noone said.
"There may be more sympathy for these guys in Iraq than if they were brought back and tried at Fort Hood," he said.
Mr. Fidell said that the military was a global enterprise these days, meaning that one venue may be as good as any other.
"A general in the Pentagon can't sneeze without somebody in Baghdad saying gesundheit," he said.
The report also found that civilian contractors from private companies were complicit in the abuse. Prosecuting them in the United States for crimes committed in Iraq may present novel and difficult jurisdictional issues.
"It's a very hard question that can only be answered in little snapshots," said Elizabeth Hillman, who teaches military justice at Rutgers University. "It's changing very quickly. This is new terrain."
Gary Myers, a lawyer for Staff Sgt. Frederick, said the most important legal question had yet to be addressed.
"Since these trials have become essentially political trials," he said, "the inquiry becomes what do we do and how high do we go. We're looking at the court martial of at least one senior officer, in my estimation."