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CIAO DATE: 7/5/2006
Law Watch: Abu Ghraib Court Martial: "Ring Leader" Spc. Charles A. Graner, Jr., Sentenced to Ten Years
Steven C. Welsh
January 2005
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:
(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.
