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Soldiers' defense not seen as winning strategy

The low-ranking U.S. soldiers accused of abusing Iraqi prisoners at Abu Ghraib have lined up almost uniformly behind a single defense strategy, one that military law experts say typically is no defense at all.

As the first public court proceedings in the abuse scandal get under way today, lawyers for most of the seven accused Army reservists contend the soldiers are not responsible because they were obeying orders.

It is a claim that historically has failed.

"The idea of 'We were just following orders' didn't survive the Nuremberg trials very well," Kevin J. Barry, a retired Coast Guard captain and former military judge, said, referring to the World War II war crimes trials in which German soldiers were convicted of operating Nazi death camps.

More recently, Army Lt. William L. Calley Jr. used the same defense in his 1971 court-martial for the My Lai massacre in Vietnam. It made him a sympathetic figure to some Americans but did not block a conviction.

"It's an extremely difficult defense," said Mary M. Cheh, a George Washington University law professor who studies military law. "There are big hurdles they face."

The first comes from one of the soldiers' colleagues, an Army specialist who told investigators that senior officers did not know about the sexually humiliating abuses some detainees at Abu Ghraib were subjected to, or about the now-widely-publicized photographs.

In Baghdad today, Pvt. Jeremy C. Sivits is expected to plead guilty at a special court-martial. It is the military's equivalent of a misdemeanor court and signals that Sivits is cooperating with prosecutors and likely will testify against his fellow soldiers from the Army Reserve's 372nd Military Police Company based in Western Maryland.

In a statement to investigators Jan. 27, released to several media outlets by an attorney for another soldier, Sivits portrayed the abuses as the high jinks of the low-level guards.

"Our command would have slammed us had they found out about this," Sivits said in the statement. "They believe in doing the right thing. If they saw what was going on, there would have been hell to pay."

Charging documents filed by the military last week allege that another soldier, Cpl. Charles A. Graner Jr., tried to influence "the cooperation of a witness" by warning Sivits after a night of abuses Nov. 8: "You didn't see [anything]."

Graner and the five other accused soldiers have offered a different version in their comments or through their attorneys. They

say the military police troops, serving as prison guards with virtually no training, were directed by military intelligence officers at Abu Ghraib to "soften up" prisoners for interrogation.

Graner and two other defendants, Sgt. Javal S. Davis and Staff Sgt. Ivan L. "Chip" Frederick II, are scheduled to be arraigned today in Baghdad.

Their court appearance comes as lawmakers in Washington are expected to hear testimony from three top military commanders in Iraq about the prison abuses.

Lawmakers in the past week have sharply questioned the contention that the prison abuses were the work of a few rogue soldiers. But Cheh and other legal experts said that does not allow the low-ranking military police troops to escape punishment.

Soldiers are expected to follow orders unless they are criminal or "obviously beyond the pale," Cheh said.

In the Iraqi prison cases, she said, one issue will be whether the soldiers can prove that they were ordered to carry out the specific abuses documented in photographs.

Another issue is whether the soldiers can claim that they believed the orders were lawful, as attorneys for Graner and other soldiers contend.

Barry, the former military judge, said the intense pressure to gather intelligence in the face of potential terrorist strikes, and what was a rising insurgency in Iraq last fall, might have created a gray zone where soldiers believed they were following lawful orders.

"They're over there in a prison doing a job they're not trained to do, and they're being told, 'This is how we're doing it - the old rules don't apply,'" Barry said. "There's a long history of the little people getting court-martialed, while the higher-ups see nothing."

Jordan J. Paust, a law professor at the University of Houston and a former captain in the Army's Judge Advocate General corps, said disclosures by top military officials over the past few weeks also could help the soldiers' defense.

He pointed to interrogation guidelines issued in October by Lt. Gen. Ricardo S. Sanchez, the top U.S. general in Iraq.

The guidelines allowed for sleep deprivation, forcing prisoners into "stress positions" and threatening them with guard dogs.

Military officials announced last week that it would ban those practices.

"It's the infusion of these unlawful interrogation rules that confuses the process in terms of 'patent illegality'" in the orders that the soldiers say they were given, Paust said.

But he added: "I also can hear a prosecutor arguing, essentially, that ignorance of the law is not an excuse."

Sanchez is scheduled to testify today before the Senate Armed Services Committee, along with Maj. Gen. Geoffrey D. Miller, head of detention operations in Iraq, and Gen. John P. Abizaid, the top U.S. officer in Iraq.

All three are expected to face scrutiny of their possible roles in enabling or encouraging mistreatment of Iraqi detainees by a panel of Democrats and Republicans who already have raised pointed questions about the role and responsibility of senior officers in the scandal.

At a hearing last week, Sen. Lindsey Graham, a South Carolina Republican, said more charges might be warranted against more senior officers in the scandal.

"Not only should we focus on the privates and the sergeants and the specialists who did criminal activity," Graham said, "but we also should have higher accountability."

Legal precedent suggests that attempts to deflect responsibility to those below would be no more successful than the soldiers' defense of obeying orders.

After World War II, the Japanese commander in the Philippines, Gen. Tomoyuki Yamashita, was convicted by a U.S. military commission and hanged for allowing his troops to carry out unlawful assaults and killings.

Yamashita argued that he had not ordered his troops to carry out the crimes.

In its review of his case, however, the U.S. Supreme Court said that the laws designed to protect civilians and prisoners of war from brutality "would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection."

Copyright © 2015, The Baltimore Sun
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