Officers Untouched by Abu Ghraib Prosecutions

Two years after the Abu Ghraib prison photos came out of Iraq, no high-level officers have been charged in relation to the prisoner abuse. The highest ranking person charged so far is a staff sergeant. The structure of the military and its justice system make it difficult to prosecute officers in cases like Abu Ghraib.

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Now, the U.S. military is getting closer to the end of its own shakeup, after the Abu Ghraib scandal. It's been nearly two years since we first saw photographs of prisoner abuse in Iraq, and the military is starting to wind up its prosecutions. So far, only low-ranking soldiers have been sentenced to jail. One issue that remains unsettled is whether higher-ranking officers authorized or condoned this abuse. And we have more this morning from NPR National Security Correspondent Jackie Northam.

JACKIE NORTHAM reporting:

When the photographs, showing U.S. personnel abusing and sexually humiliating Iraqi detainees were first made public two years ago, there was shock, outrage and promises by Congress and the administration to get to the bottom of it. Given that, it's surprising that not more has been done to resolve the question of who is ultimately responsible.

This is John Sifton, terrorism and counterterrorism researcher for Human Rights Watch.

Mr. JOHN SIFTON (Terrorism and Counterterrorism Researcher, Human Rights Watch): What we got was piecemeal, ad hoc efforts to hold a couple of soldiers accountable and no officers. Two years after Abu Ghraib, questions are still being asked about why officers haven't been charged.

NORTHAM: So far, there have been 10 courts marshal connected to the Abu Ghraib scandal. The highest-ranking soldier convicted has been a staff sergeant, and all but one was given a jail sentence. Non-judicial punishments were handed out to two high-ranking officers, reprimands that essentially ended their careers, but meant they did not have to face a court marshal. Part of the reason so few officers have been brought to trial, is because it's still unclear as to who, or what branch, of the military was in charge of Abu Ghraib, says Walter Huffman, the dean of Texas Tech Law School and a former Army judge advocate-general.

Dean WALTER HUFFMAN (Dean, Texas Tech Law School): You had the military intelligence personnel who were, some said, in charge. You had the military police who were the custodians of the prisoners who, some would say, should have been in charge. And when you have this unclear chain of command, invariably, no one's in charge. And the confusion for the folks at the lower level becomes a problem.

NORTHAM: Under the military justice system, it's commanders from various branches of the military who decide whether to investigate and charge those responsible for the abuse. Eugene Fidell, a specialist in military law, says that splintered approach makes that difficult to get a well-rounded picture of what led to the abuse.

Mr. EUGENE FIDELL (President, National Institute of Military Justice): You've got a variety of different commanders who may be applying different standards of conduct. In addition, you have decentralized decision making without a single a district attorney, so to speak, with responsibility for pursuing leads wherever the path leads.

NORTHAM: Fidel says there should be an independent investigation into Abu Ghraib, one with the power to subpoena testimony. The Pentagon has conducted or commissioned 12 of its own investigations. But in only a few cases, the conclusions involved nothing more than a mild criticism of senior officials, and some recommendations for systemic changes. Defense lawyers for many of the soldiers, who were court marshaled, sought and failed to put high-ranking officers on the witness stand. Former Army JAG, Huffman, says that's not unusual.

Dean HUFFMAN: I strongly believe that the defense counsel made every effort to find someone at a higher level that they could have used to say: Yes, I'm the person who gave the order to do that. And they couldn't. Otherwise, they would have produced them.

NORTHAM: This was the same situation that played out in the My Lai scandal, when U.S. soldiers massacred villages in Vietnam in 1968. About 25 soldiers were charged in the incident, but only one was convicted. William Eckhardt was the chief prosecutor in the case. He says it was difficult to prove a senior officer gave an explicit but illegal order.

Mr. WILLIAM ECKHARDT (Chief Prosecutor, My Lai Massacre Trial): Well, I think it was particularly troublesome; but those of us who knew early on, and when it was, even when it was all over, it was not how poorly we did and the record was abysmal, but how far we got.

NORTHAM: And just because prosecutors haven't been able to charge and convict a high ranking officer, doesn't mean they're not trying, says Gary Solis, a former military lawyer and judge, and currently a professor at the U.S. Military Academy at West Point. Solis says it takes time to bring forth a case, but two years is way too long.

Dr. GARY SOLIS (Professor, U.S. Military Academy, West Point): If you're a prosecutor, as I was a prosecutor, you know that you have to strike while the iron is hot. And memories fade. Evidence is evanescent. And witnesses die. Get transferred, become unavailable. So if you're going to try a case, you have to do it fairly rapidly.

NORTHAM: The next, and possibly last, court martial springing from the Abu Ghraib scandal is scheduled for late May. It involves Sergeant Santos Cardona, a dog handler who dealt with detainees at the Iraqi prison.

Jackie Northam, NPR News, Washington.

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