Soldiers photographed apparently abusing Iraqi prisoners will invoke the “just following orders” defense when courts-martial convene this summer and fall.
Military prosecutors already got a glimpse of that strategy this week at a pre-trial hearing in Baghdad. Defense attorneys for two accused military policemen said they were ordered to abuse Iraqi detainees by military intelligence officers who conducted interrogations at Abu Ghraib prison.
But such a defense has pitfalls, according to defense lawyers not involved in the cases.
The defendants will first have to prove they received such an order, and then explain why they followed what most would consider an illegal command.
“About the only defense that they’re going to be able to raise against these charges of violating the Geneva Conventions and assaultive-type behavior is that they were acting with authority,” said Neal Puckett, a former Marine Corps judge advocate who specializes in defending military clients.
But he added, “There’s a line that can’t be crossed. If someone gives you authority to do something and it is illegal, then actually the soldier is under an obligation to refuse to obey the order.”
Mr. Puckett said defendants face a court battle. The officer who supposedly gave the order probably would refuse to testify to breaking the law. The defendant would then have to show that the officer was present at the time of the abuse and thus condoned it.
“I don’t think it’s going to be successful because I don’t think they’re going to find people in authority who will admit to the conduct we saw in the pictures,” Mr. Puckett said.
Mr. Puckett is representing Army Brig. Gen. Janis Karpinski, who commanded the MP brigade that guarded Abu Ghraib. The Army has admonished Gen. Karpinski and suspended her command for a lack of discipline among her soldiers. But she denies knowing of the abuse and faces no charges.
Of seven brigade members charged with criminal offenses, one MP already has pleaded guilty and was sentenced to prison. That leaves six others, one of whom, Pfc. Lynndie England, is to appear next month at a pre-trial hearing at Fort Bragg, N.C.
The Army is still conducting a criminal probe that could result in charges against intelligence officers who ran the interrogation rooms.
“The military recognizes a defense of obedience to orders,” said Eugene R. Fidell, a prominent defense attorney in Washington, D.C., who specializes in military law. “But it has to be an order that is a lawful one. If the order is one a reasonable person of ordinary sense and understanding would have to know is unlawful, there’s no defense.”
The military’s Manual for Courts-Martial dictates that the presiding judge decides whether the order in question is unlawful in the eyes of “ordinary sense and understanding.”
“No one can suggest with a straight face that these MPs were acting alone,” said Guy Womack, an attorney representing Spc. Charles A. Graner Jr., after a pre-trail hearing in Baghdad on Monday.
“We can’t have American soldiers in a war zone questioning the legality of orders,” the Associated Press quoted him as saying.
In a broader move, defense attorneys are beginning to suggest that statements made in Washington during the war on terrorism set the atmosphere for MPs to mistreat inmates to procure vital information on the deadly insurgency in Iraq.
Senior commanders have approved stress-inducing measures, such as sleep and light deprivation. But Defense Secretary Donald H. Rumsfeld said last week that his review showed no senior commander or civilian approved the kind of criminal abuse uncovered at Abu Ghraib.
Mr. Womack and another defense attorney, Paul Bergrin, won important victories at the Baghdad hearing Monday.
The judge ruled that senior officers, including Gen. John Abizaid, the top Persian Gulf commander, and Lt. Gen. Ricardo Sanchez, the senior commander in Iraq, must submit to pre-trial questioning by defense attorneys.
