Global Policy Forum

By Nicholas Riccardi

Observers see a variety of reasons for light sentences, even in interrogation deaths - including shifting rules and CIA involvement.

Soldiers prosecuted in the abuse or even deaths of detainees rarely have paid a heavy price, an indication of the difficulties the US military has had sorting out right from wrong during the war on terrorism, human rights groups and military lawyers say.

A report to be released next week by Human Rights First has found that service members were disciplined in 12 of the 33 cases in which detainees' deaths were ruled homicides. Often that punishment was relatively mild, as was the case for Chief Warrant Officer Lewis E. Welshofer Jr. Charged with murder in an Iraqi general's death during an interrogation session, Welshofer was convicted last week of lesser offenses. On Monday, a jury of six Army officers at Ft. Carson, Colo., ruled that instead of serving jail time and being forced from the military, Welshofer would receive a formal reprimand, forfeit $6,000 of his salary and spend 60 days restricted to his home, office and church.

It was the latest in a growing list of setbacks for military prosecutors. Last year, a jury acquitted a Navy SEAL in the beating of an Iraqi detainee who later died in CIA custody. And of 15 soldiers serving in Afghanistan whom the Army has disciplined for abuse at a jail where two detainees died, three were acquitted and none has received more than five months' jail time.

There is no complete independent tracking of military abuse prosecutions. But observers say the stiffest sentence appears to have gone to Spc. Charles A. Graner Jr., convicted of torturing but not killing detainees at Abu Ghraib prison in Iraq. He is serving 10 years in a military prison. "It's telling that the person who got the most time was the one all over television," said Jumana Musa, an official with Amnesty International. "The less in the news, the lighter the sentence seems to be."

Frank Spinner, Welshofer's lawyer, said the lighter sentences were a reaction to overzealous prosecution of service members who were trying to protect the US. "When you're going to send our men and women over there to fight and put their lives on the line," Spinner said, "you've got to back it up. You've got to give them clear rules and you've got to give them the room to make mistakes and not treat them like a criminal."

Experts in military law and other monitors note that every case is different, but say there are a variety of reasons for the difficulty in punishing service members for detainee abuse. Because the Bush administration repeatedly has shifted regulations on detainee treatment, it is difficult to hold soldiers accountable for violating standards, experts say. And with combat raging in Iraq, many accused soldiers have made the argument that they are trying to save lives and are not criminals. The presence of intelligence agents during some of the alleged brutality also makes juries less likely to place all the blame on soldiers. And in some cases, key pieces of evidence have been lost, hindering prosecution.

Finally, soldiers make sympathetic defendants during wartime, said Eugene R. Fidell, a longtime military lawyer and president of the National Institute of Military Justice in Washington, which tracks legal issues in the armed services. "Is there a question as to whether it's a hard sell for a military jury to hammer somebody?" he asked rhetorically. Besides, Fidell said, "we're not alone in this." He cited the case of five Danish soldiers convicted of abusing detainees in Iraq. Last week, a Danish court refused to sentence them to prison because they'd been given unclear interrogation orders - almost the identical defense Welshofer used to avoid jail time.

During a Tuesday conference call arranged by Human Rights First, the dead Iraqi general's son, Mohammed Mowhoush, said Welshofer's sentence was too light. "This judgment is not fair," he said. "This man, Lewis Welshofer, killed someone and he must be punished more harder than that."

In Washington, presidential spokesman Scott McClellan said Welshofer's sentence did not indicate that the US was lax about punishing its own. "When there is wrongdoing or abuse, people are held to account, and we have seen that time and time again," McClellan told reporters. "This country holds people to account if they don't follow the law - if they don't follow the rules that are in place." Welshofer and his lawyer argued in court that there were no clear rules on interrogation in Iraq during much of 2003, and that the interrogator believed that binding captives in a sleeping bag to induce claustrophobia was allowable under a set of techniques that the US commander in Iraq had approved.

On Nov. 26, 2003, Maj. Gen. Abed Hamed Mowhoush, the suspected leader of the insurgency near the western Iraqi town of Qaim, died in a sleeping bag while Welshofer straddled his chest and occasionally covered his mouth to silence him. Three members of the six-officer jury had served in Iraq, and arguments that Welshofer, a 19-year veteran, was trying to save lives by getting information out of the general appeared to sway the panel.

That's to be expected, said Walter Huffman, dean of Texas Tech's law school and the Army's former top lawyer, given that military juries these days are drawn from officers who likely served on battlefields in the war on terrorism.

"Persons who are charged with committing an act during that time, in front of a jury that's been there, are more likely to be given the benefit of the doubt ... than if they committed the same offense at Ft. Hood, Texas," he said. Huffman pointed out that military juries tended to consist of educated officers who were experts in procedure. But he joined other observers in saying that the administration's findings that the Geneva Convention did not apply to some combatants during the war on terrorism could have made juries sympathetic to soldiers who argued that they were trying to sort out the right behavior amid unclear standards.

"Juries are being presented a real mixed bag of evidence, where on one hand the person before them bears some direct responsibility for the crime that is committed, but on the other hand they're hearing evidence that this person was operating under either unlawful orders or mixed messages about what sort of job they were supposed to be doing," said Deborah Pearlstein, director of the US law and security program at Human Rights First in New York.

Another roadblock for prosecutors, Pearlstein said, is that the military sometimes has been careless in handling evidence. For example, a military autopsy found that an Iraqi detainee had been strangled to death at a Marine holding camp in south-central Iraq in June 2003, but the corpse was left at the Baghdad airport and irreparably damaged. According to excerpts from the Human Rights First report, most Marines charged in the death had their cases dismissed because of the destroyed evidence. The CIA's role in some of the abuse also has complicated prosecutions. Last year, a jury of naval officers acquitted Lt. Andrew K. Ledford of charges that he'd led a brutal beating of an Abu Ghraib detainee who later died in CIA custody. Ledford and other SEALs were photographed with the detainee, but his lawyer, Spinner, argued at trial that the CIA had to be called to account for the death.

Spinner faced a similar dynamic at Welshofer's trial. Evidence showed that two days before he died, Welshofer's prisoner was beaten by reported CIA contract workers in the presence of a possible CIA agent. "Something occurred in that courtroom that indicated to the jury that this guy was not doing this all by himself," said Scott L. Silliman, a Duke University law professor and former Air Force lawyer. "In future trials, I think you're going to see this CIA presence raised."