- The Washington Times - Sunday, March 26, 2006

When a colonel testifies “under grant of immunity” against a sergeant who sicced dogs on prisoners at Abu Ghraib, it strikes the average onlooker as a miscarriage of military justice. Shouldn’t it be the other way round? Or the sergeant being granted immunity to testify about a superior whose wink and a nod stained the country’s honor, as it hadn’t been in living memory?

Franz Kafka seemed to have joined the defense team when lawyers for dog handler Sgt. Michael Smith at the Abu Ghraib prison scandal trial suddenly dropped their request that an Army general involved in the affair be called to testify. Army Capt. Mary McCarthy told the military judge at the Washington’s Navy Yard she no longer needed Army Maj. Gen. Geoffrey Miller to take the witness stand.

The closed-door, pretrial hearings wreaked of rank pulling. Gen. Miller, a central figure in the detainee torture scandal, invoked his right not to incriminate himself in court-martial proceedings. That was Article 31 of the Military Code of Justice — the equivalent of a civilian pleading the Fifth Amendment.

Smith faced up to 29 years in prison if he had been convicted on all 13 counts.

The legal gambit by Gen. Miller — who once supervised the U.S. prison at Guantanamo Bay, Cuba, and also helped organize Abu Ghraib operations — was the first indication the general might have information that could implicate him. The dog handlers’ lawyers have argued all along their clients were following orders when the animals were used to make prisoners talk.

Col. Thomas M. Pappas, the commanding officer at Abu Ghraib, was given immunity so he could testify why the dogs were used and who ordered them to be used.

Gen. Miller has long been the focus of the Abu Ghraib torture investigations because he was transferred there in August 2003 to streamline intelligence-gathering from questioning prisoners by using his Guantanamo Bay experience as a model. Gen. Miller also transferred “Tiger Teams” from Gitmo to Abu Ghraib to train the interrogators already there.

Even though dogs were first used at Gitmo, Gen. Miller says he never ordered Col. Pappas to use animals when questioning prisoners. But Col. Pappas already admitted in administrative hearings he improperly ordered the use of dogs. And it’s an open secret among defense lawyers that Gen. Miller didn’t put anything in writing. The cock of an eyebrow can be interpreted either way. Col. Pappas, according to lawyers, is convinced Gen. Miller got a wink, a nod or a hand signal from someone above his pay grade, most probably a civilian in the Pentagon.

Smith’s lawyers didn’t press for Gen. Miller’s appearance at the court-martial because he had invoked his constitutional right to remain silent, and the Army sergeant was found guilty on six counts, including conspiring with another Army dog handler to scare prisoners into soiling themselves.

Prosecutors argued for a three-year sentence for Smith, who had been hailed as a hero for saving the lives of other U.S. soldiers during a mortar attack. An army jury of peers disagreed. They gave him a rap on the knuckles — six months and a dishonorable discharge. It was a tacit recognition the guilty parties were sheltering near the top of the military food chain. Smith said he wished he had gotten his orders in writing.

There is little question Gen. Miller’s call for tough, command-wide interrogation policies led to Col. Pappas’ decision to authorize a dozen different techniques beyond those authorized in the Army Field Manual. Gen. Miller claims he discussed the use of dogs to help detainee custody and control. But Col. Pappas counterclaims Gen. Miller told him dogs were helpful at Gitmo by producing the right atmosphere (of fear) for interrogations.

Whatever happened at the higher level, Smith and fellow dog-handler Sgt. Santos Cardona, faced separate courts-martial on a slew of charges of cruelty, maltreatment, aggravated assault, and making false statements. Sgt. Cardonna’s trial begins next month. Last Jan. 15, a jury of soldiers sentenced ringleader Spec. Charles Graner Jr. to 10 years in prison. Lynndie England, a 23-year-old reservist photographed giving a thumbs-up in front of a pile of naked prisoners, is serving a three-year sentence. Of the seven soldiers charged, three entered guilty pleas and three faced courts-martial.

The Statue of Liberty as the hooded Abu Ghraib prisoner, electrodes tied to the wrists, swaying precariously on a pedestal, is found on walls and in cartoons the world over. It has been al Qaeda’s most effective poster for jihadis in Europe, the Middle East and North Africa.

Long before the pictures surfaced, high-ranking officers in the Judge Advocate General (JAG) expressed their deep concern civilian officials at the Pentagon were undermining the military’s traditional detention rules and regulations, ignoring interrogation procedures, and specific cases of torture.

The Pentagon’s civilian leadership was alerted in the fall of 2003. The former Defense Undersecretary for Policy Douglas Feith, who had been assigned postwar planning in Iraq, was quoted by subordinates in a 110-page report by the New York City Bar Association saying “the Geneva Accords” on the treatment of prisoners are laws “in the service of terrorists.” Hardly surprising that the National Guard prison guards knew squat about international treaty obligations.

JAG officers, quoted in the same Bar report, said Mr. Feith had “significantly weakened” the military’s rules and regulations governing prisoners of war. And America’s image on the human-rights front continues tarnished.

Former Irish president and former U.N. Human Rights Commissioner Mary Robinson deplored how some democracies are “losing the moral high ground.” In the U.S. in particular, she said, “the ambivalence about torture, the use of extraordinary rendition and the extension of presidential powers have all had a powerful ‘knock on’ effect around the world, often in countries that lack the checks and balances of independent courts, a free press and vigorous nongovernmental organizations and academic communities.”

Arnaud de Borchgrave is editor at large of The Washington Times and of United Press International.

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