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Superior Orders: Will the Defense Work for PFC Lynndie England,
Who Is Accused of Abusing Abu Ghraib Prisoners?


Tuesday, Aug. 10, 2004

Private First Class Lynndie England is now notorious as the female soldier who appeared, grinning, in many of the Abu Ghraib prison abuse photographs. In one photograph, she holds an Iraqi detainee on a leash. She is also prominently featured in many other photographs -- including some showing naked detainees arranged in a variety of degrading ways. Because of the power of these photographs, England has arguably become the iconic image for this scandal here and abroad.

Last week, England appeared at a military pretrial hearing regarding alleged misconduct at the Iraqi prison. Given the sheer volume of evidence against England, it's likely the hearing officer will recommend that she face a court martial - the equivalent of a felony criminal trial -- on 19 charges. If she is convicted, the sentence could be up to 38 years in a military prison.

In defending against the prison abuse claim, England's attorneys plan to raise, among other issues, the defense that she was acting pursuant to "superior orders." Could she prevail on this defense?

In this column, I will examine that question - based on the evidence publicly available thus far. In addition, I will discuss the likely progress of the case, from here on out.

The Nature of The Ongoing Pretrial Hearing

It's important, first, to understand by way of background the hearing that began last week, and is still ongoing. This pretrial hearing is called an "Article 32 hearing." At the hearing, military prosecutors need not prove every charge beyond a reasonable doubt. They need only prove to the military judge that enough evidence exists to recommend a general court martial.

The presiding officer at the hearing is Col. Denise Arn. At the hearing's close, Col. Arn will make a recommendation to the convening authority in this case - the general who is in charge of the overall command bringing the charges.

In turn, that general may order a court martial when "reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused committed it." (For more on the mechanics of the military justice system, see my earlier column on the subject for this site.)

In this case, most observers feel that the copious evidence -- photographic and testimonial evidence - make the outcome of the pretrial hearing a foregone conclusion: Col. Arn will doubtless recommend a court martial, and a court martial will doubtless occur.

The Superior Orders Defense: What It Requires, and What the Exceptions Are

At the court martial, as noted above, England will raise a "superior orders" defense. Generally speaking, all soldiers must follow the orders of their superiors. The superior orders defense is the corollary to this rule; it is an affirmative defense to any charge where a soldier was ordered to do something, and then prosecuted for that act.

Rule 916 of the Manual for Courts Martial states that "[i]t is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful." (Emphasis added.)

In England's case, two issues will likely arise: First, was she actually "acting pursuant to orders"? And if so, did she know - or would a person of ordinary sense and understanding have known - that those orders were unlawful? If not, the defense is established.

Unfortunately for England, it seems that she will find to hard it to prevail on either issue, given the testimony last week. And to prevail in her defense, she must prevail on both issues.

(The superior orders defense is sometimes confused with the concept of "command responsibility" - familiar from the cases which grew out of the My Lai massacre in Vietnam. But "command responsibility" is a reason to broaden - not narrow - the class of possible defendants. It says that commanding officers can be held criminally liable for her subordinates' actions when she knew about them or should have known about them. But it does not let subordinates like England off the hook. Moreover, in practice, the command responsibility doctrine has generally resulted only in administrative action with respect to superior officers who did not participate in or control the bad acts. For instance, in this case, the Army has so far only issued administrative rebukes against the officers and sergeants in charge of Abu Ghraib - though army officials say they may bring subsequent criminal charges based on the "command responsibility" doctrine.)

Was England Acting According to Orders? Fellow Soldiers Say No.

In public statements, England and her lawyers say she was ordered both to mistreat Iraqi detainees, and to take photographs of the mistreatment, in order to soften up detainees for future interrogation by U.S. intelligence personnel. But military officials have denied England's allegations that someone in the Pentagon or CIA chain of command ordered the abuses at Abu Ghraib.

For instance, in May, Carl S. McGuire - part of a Denver team of attorneys that then was (but no longer is) representing England - told the Washington Post that, "People told Pfc. England, 'Hold that leash,' told her to smile, so they can show the photos to subsequent prisoners."

Capt. Jonathan Crisp, England's military defense attorney, also suggested in court that her actions were part of a larger Army plan to "set the conditions for interrogations." This plan, he suggested, was developed by Maj. Gen. Geoffrey Miller, who headed the prison at Guantanamo Bay before taking over the Abu Ghraib prison. It employed tactics such as sleep deprivation, strange meal patterns, stress positions and other psychological devices to break down detainees in order to make them talk to interrogators.

Special Agent Warren Worth, an Army criminal investigator, testified last week that there was confusion at Abu Ghraib over where the outer limits of this authority lay, and how far the military police soldiers (like England) should go in softening up detainees. "Some of the soldiers alluded to military intelligence possibly saying to 'give them the treatment' or soften them up," Worth said.

But vagueness and confusion about what was expected of soldiers are not enough to establish the defense. Again, the question is this: Was England actually ordered to abuse prisoners at Abu Ghraib? Her fellow soldiers and commanding officers, it seems, say no.

For example, Army Spec. Joseph Darby said, "To my knowledge, ma'am, they were never ordered to do anything." And Darby's testimony matters a great deal: As the soldier who blew the whistle on the Abu Ghraib scandal -- by passing a CD-ROM full of incriminating photographs on to Army criminal investigators - he has established his credibility in the eyes of many.

Meanwhile, other soldiers have echoed Darby's assertion that there were no abuse orders given. Indeed, thus far, none of the other officers or soldiers from Abu Ghraib have testified to the existence of such orders. Nor have any of the Army's criminal investigators. The lack of supporting testimony - and the existence of contrary testimony - will be a hard blow to England's attempted defense.

At the pretrial hearing, Capt. Donald Reese, England's immediate commander, denied his soldiers were ever ordered to beat detainees or sexually abuse them. Capt. Carolyn Wood, who played a key role in the intelligence operation at Abu Ghraib, testified that she was shocked, disappointed and outraged by the conduct - which, she says, went far beyond the intelligence orders she had given to the MPs at Abu Ghraib.

So Far, England's Defense Remains Unspecific, For She Did Not Testify

At her court martial, England will very likely testify on her own behalf - and will very probably identify the person who, she says, ordered her to abuse prisoners. But at her pre-trial hearing, she did not take the witness stand.

That's not unusual. Doing so would have meant England waived her Fifth Amendment right against self-incrimination, and could have been fully cross-examined as to her testimony at the pretrial hearing.

The result would have been to give the government a preview of her trial testimony - as well as possible material to use to impeach England at trial if her testimony turned out to be weak or contradictory.

Two Prominent Reports May Indirectly Aid England's Defense

Meanwhile, two prominent reports on Abu Ghraib may help England in her attempt to establish a "superior orders" defense.

First, there is the investigative report authored by Army Maj. Gen. Antonio Taguba, which found a pattern of misconduct at Abu Ghraib that implicated everyone from PFC England to the top general in Iraq. While the report does not actually say England herself was given orders - which is what she must prove - it does suggest she was not acting alone, and that her superior officers, too, might be culpable. Moreover, like other reports in the news media, he Taguba report at least alludes to the existence of such orders.

Second, there is a May 2004 article by Seymour Hersh in the New Yorker magazine. The article indicates that the Abu Ghraib abuses were conducted at the direction of top Pentagon officials with the specific intent to coerce detainees into talking.

The Taguba and Hersh reports have not yet been offered into evidence by England's attorneys. Moreover, it's not clear they could be offered because of hearsay problems. They would count as hearsay in part because they would be offered to prove the truth of the matter asserted - that Abu Ghraib abuses were done under orders. And it's not clear if any hearsay exception might apply.

It's possible, however, that England's attorneys might try to otherwise admit into evidence those statements in the Taguba and Hersh reports that seem helpful to England. They could try to put Taguba or Hersh on the stand, for example, to examine the basis of the statements - though obviously, as a journalist, Hersh might refuse.

In addition, they could ask the court to direct Hersh to reveal his anonymous sources in the interests of justice - a request that would pit Hersh's First Amendment's rights against England's Sixth Amendment right to a fair trial.

After all, if Hersh's sources remain anonymous, England may be left ignorant of a witness who could help establish her defense. But if the sources are revealed, the efficacy of Hersh's well-known reportage on the military would doubtless be decreased, as sources will predictably be less willing to speak - even on condition of anonymity - to Hersh.

Still to Be Decided: How Many - and Which -- Witnesses Can England Call?

England's attorneys have asked the pre-trial judge, Col. Arn, for permission to call 50 additional witnesses at the pre-trial hearing, whose testimony, they say, will contribute to England's superior orders defense.

These potential witnesses include Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, former top commander Lt. Gen. Ricardo Sanchez, and 800th MP Brigade commander Brig. Gen. Janis Karpinski. The defense team plans to ask these witnesses about the existence of various orders at Abu Ghraib geared at "softening up" detainees.

The judge halted the pre-trial hearing in order to consider this motion. It's not clear how many of the witnesses she will allow. It's unlikely she will allow all of them - given the summary nature of this pre-trial hearing. (Again, the evidence presented so far is more than enough to support a court martial recommendation.)

However, the judge will likely allow at least some of these witnesses. And their testimony may add credence to England's allegations that she was just following orders.

Should England Have Known the Orders Were Unlawful? The Evidence Says Yes.

Again, even if England can prove she acted under orders, she also has to prove that she didn't - and an ordinary person wouldn't have - known those orders were unlawful. But that will be very hard to prove here.

Certainly, the order was indeed unlawful: International law and military law are well settled on this point - any order to abuse prisoners in the ways depicted in the Abu Ghraib photographs is unlawful on its face.

Granted, some legal ambiguity surrounds the use of certain methods described by Capt. Wood in her testimony this past week, such as the use of sleep deprivation and stress positions for detainees. And the now-infamous torture memoranda produced by the Justice Department and Defense Department may be taken to create more ambiguity.

But in the end, the illegality of many of the acts with which England is charged is not at all ambiguous. If only a few acts of comparatively lesser gravity were at issue, England might convincingly argue for their legality. But those nineteen charges reflect many acts that are legally indefensible.

And certainly, England - and any other soldier -- should have known that these acts were illegal. For instance, it is plain to anyone that sexually assaulting an inmate, or worse, is illegal.

The Upcoming Court Martial: What It Will Be Like, and How England May Fare

In the upcoming court martial, of course, prosecutors will have to prove every element of every charge beyond a reasonable doubt. Given this standard of proof, could England prevail on her defense?

It is overwhelmingly likely the orders will be deemed unlawful - a decision to be made by the military judge, not the jury. But can England convince the jury that she did not - and an ordinary person would not necessarily have - known the orders were unlawful?

As with civilian criminal defendants, much will depend on how much exculpatory evidence exists - and is admissible. Her attorneys must, at a minimum, produce evidence of superior orders. But England may defeat some or all of the charges.

The jury that makes the ultimate call as to guilt or innocence will be composed of military officers and soldiers. (In a general court martial, the jury includes at least 5 soldiers, usually from the same command as the defendant. An enlisted defendant, like Private First Class England, has the right to a jury where 1/3 of the members are enlisted personnel like her.)

Some of the jury members may have seen recent combat in Iraq, or have been in combat situations in the past. Possibly, they may be open to the "superior orders" defense, or a separate defense based on a change in England's mental state due to combat stress.

But in the end, it's hard to predict what the jury will do: As in civilian criminal court, all bets are off when the case goes to the jury. The process, however, is well-established - and quite different from the criminal process for civilians. For instance, to convict on non-capital charges such as these, only 2/3 of a military jury need find the defendant guilty. Military juries vote only once, on a secret ballot, and the defendant is acquitted if a 2/3 majority is not reached on that single vote.

England Could Appeal, But the Chances of Winning Would Be Slim

If England is convicted, she will have the ability to appeal her conviction through the military court system. Given the severity of the charges against her, she has an automatic right of appeal to the Army Court of Criminal Appeals. There, her case will be reviewed for legal error, factual sufficiency, and sentence appropriateness.

Assuming that court is unconvinced England may next appeal her case to the U.S. Court of Appeals for the Armed Forces - which is equivalent in stature to a federal appellate court.

Finally, from there, England could take her case all the way to the U.S. Supreme Court. But her odds of being granted certiorari are as good as any other criminal defendant - which is to say, very slim.

Phillip Carter is a former U.S. Army officer who writes on national security issues; He will join the Los Angeles office of McKenna Long & Aldridge this fall. Carter is a graduate of UCLA Law School.

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