The Gazette January 25, 2006
Light punishment in fog of war
By Tom Roeder
Ten Fort Carson soldiers have been charged with abusing or killing Iraqis since the Iraq war began in 2003. Of those, four have been convicted and sentenced to a total of nine months behind bars.
The formula for getting light courtmartial sentences in prisoner-abuse cases has been simple, experts in military law said Tuesday: show a sympathetic jury the rigors of combat guided by hazy rules of conduct.
It worked for Chief Warrant Officer Lewis Welshofer of the 3rd Armored Cavalry Regiment.
Welshofer was reprimanded Monday and fined $6,000 by the jury that convicted him of negligent homicide in the 2003 death of Iraqi Maj. Gen. Abed Hamed Mowhoush during interrogation.
“It doesn’t excuse what happened, but the jury members were much more easily able to put themselves in the situation than civilians,” said Charles Lucy, a Colorado Springs attorney who worked for three decades as an Air Force lawyer. “And when you layer that on top of the lack of guidance, you can understand what happened.”
Mowhoush died after he was stuffed headfirst into a sleeping bag and wrapped in electrical cord during an interrogation session in which Welshofer sat on his chest.
His attorney, Frank Spinner, focused the six-officer jury on a series of memos about interrogation rules issued by Army commanders in Baghdad that authorized tough techniques.
Spinner used witness testimony to show that Welshofer thought the sleeping-bag method was legal, along with pouring water down the general’s throat and slapping prisoners.
The lax rules worry Eugene Fidell, a Washington, D.C., lawyer who heads the National Institute for Military Justice. He said that in most prisonerabuse cases, including those involving the Fort Carson soldiers, the lack of clear rules has been exploited as an excuse for bad conduct.
“It has effectively created a climate of impunity and that is disturbing,” Fidell said. “Soldiers are entitled to clear rules, and we have an obligation to make sure those rules are strictly observed. We have an obligation to make sure our forces are well-behaved.”
But as a defense, he said, it’s effective because the lack of rules aims blame away from soldiers who commit abuses and can shield them from harsh punishment.
It’s partly why three other Fort Carson soldiers convicted of prisoner abuse also received leniency.
Lawyers for 1st Lt. Jack Saville and Sgt. 1st Class Tracy Perkins of the 3rd Heavy Brigade Combat Team argued that commanders’ demands led to their 2003 assault on a prisoner.
Saville got 45 days in jail after a plea agreement. Perkins was sentenced to six months in prison when he could have gotten more than 11 years.
Capt. Shawn L. Martin of the 3rd ACR was convicted of three counts of assault against Iraqis. His lawyers argued that Martin was a good soldier who was authorized to use tough techniques. He got 45 days and a $12,000 fine.
The harshest sentences for mistreatment of Iraqis went to two U.S. soldiers charged with photographing prisoners in forced poses at Abu Ghraib prison, south of Baghdad. Pfc. Lynndie England was given three years and another soldier got 10 years in prison. Neither soldier was connected to Fort Carson.
Punishing the soldiers who humiliated prisoners at Abu Ghraib more harshly than Welshofer is troubling, said Scott Silliman, a Duke University law professor who served 25 years as an Air Force lawyer.
“I don’t think it sends a good signal to other soldiers,” Silliman said. “They can look at Abu Ghraib and say nobody died.”
Silliman also questioned the decision of Welshofer’s prosecutors to put a CIA agent on the stand.
Even though the agent testified that Welshofer casually ignored rules that required humane treatment of prisoners, “the very fact that you have the CIA testifying hammers home that this was a confusing environment,” Silliman said.
John Pike, who runs the Virginia-based defense think tank GlobalSecurity.org, said Iraqis will likely take little notice of Welshofer’s sentence.
“It does not suggest we place much value on Iraqi life,” Pike said, “but they already knew that in Iraq.”
© Copyright 2006, The Gazette, a division of Freedom Colorado Information