The dramatic leadership failures revealed by two investigations into the abuse of Iraqi detainees will haunt the Army for months or even years as defense attorneys explore them in court in attempts to mitigate accusations and ease punishments for more than a score who could be charged, military legal experts said yesterday.
But the senior officers cited for indirectly allowing the abuse to flourish at the Abu Ghraib prison will not face charges under the findings of an Army report issued this week -- a fact that three Army generals explained and defended yesterday in interviews. Those in the U.S. command structure who failed to supervise their subordinates, who handed down unclear and in some cases illegal policies, and who ignored signs of abuse were found in Army reports to be "responsible" for the problems but not "culpable" because they did not have a direct hand in the mistreatment.
Pfc. Lynndie R. England's attorneys want to use the investigative reports to show that their client was following orders to abuse detainees at Abu Ghraib.
(Chuck Burton -- AP)
"That's the differentiation that's being made," Gen. Paul J. Kern -- who supervised the Army's most recent investigation, by Marine Gen. George R. Fay and Lt. Gen. Anthony R. Jones -- said in an interview yesterday with Washington Post editors and reporters. "Are we letting them off the hook? I don't think so. In fact, we put the spotlight on them and said, 'You didn't do your job right.' "
Two investigative reports released this week detailed a wider scope of abuse at Abu Ghraib than was previously known, involving military intelligence soldiers, consistent use of illegal tactics and a collapsed leadership -- findings that could begin to receive heavy play in a courtroom as soon as Monday, when one MP charged with abuse is scheduled to reappear at a preliminary hearing at Fort Bragg, N.C.
Pfc. Lynndie R. England's attorneys have said that they want to put the reports into evidence and to begin mining them for additional witnesses, contradictory testimony and evidence that their client was following orders when she was captured in photographs showing abuse at Abu Ghraib. Though England's face became synonymous with the scandal -- she was the young woman holding the leash strapped to a naked detainee's neck -- her defense team's assertions that military intelligence told her what to do gained a bit of credence from the reports, one of which concluded that "some MI personnel encouraged, condoned, participated in, or ignored abuse" and that military intelligence solicited MPs to help.
"Both reports leave two options for what happened: that it was a failed command structure that led to the abuses, or that the failed command structure is a cover-up to hide sanctioned violations of the law," said Richard A. Hernandez, England's lead attorney. "I think it clearly confirms what we've been saying all along."
Seven military police soldiers have been charged so far with crimes as a result of the Abu Ghraib scandal, and the report released by the Army this week could ultimately result in additional criminal charges against as many as 29 military intelligence soldiers, four more MPs, two medics and six civilian contractors who either were directly involved in abuse or failed to report it. That could mean more than two dozen courts-martial or civilian trials on charges including dereliction of duty, sexual humiliation, forcible sodomy and rape.
Military lawyers said that the Army's conclusions about poor leadership are unlikely to exonerate soldiers -- unless evidence shows direct orders to commit the abuse -- but that the findings could ease sentences.
Retired Marine Brig. Gen. David M. Brahms, who was a military lawyer for 26 years and is now a defense lawyer in Carlsbad, Calif., said the defense is sure to use the leadership failures in an attempt to soften the blow of the other evidence. "You want this evidence," he said. "A badly trained soldier who was not properly prepared by his seniors to deal with the chaos of Abu Ghraib, with guidelines that are fuzzy at best, and with pressure from above to demean and soften up prisoners -- that could cause members to think: Shouldn't we be lenient? It becomes an extenuating factor."
For the Army's officer corps, one of the most painful aspects of the scandal is that no officer stepped forward to stop the abuse, even though many of them knew or should have known what was going on.
"The embarrassing thing to all of us is that it was a young soldier who first raised his hand," Kern said. When asked whether the abuse in the infamous photographs would have been prevented if the leadership structure had been solid, and if military intelligence interrogators had not begun introducing harsh techniques earlier at the prison, he said: "I don't know. There was an environment there which was not healthy."
Military experts and retired officers said they were especially disturbed by the Fay report's findings of insubordination among Army units, which they took to be a worrisome sign of leadership problems.
"It's a black spot on the Army," said retired Army Col. John Antal, who commanded a training regiment at Fort Knox, Ky. "Any professional soldier sees this, it tears his heart." He said it brought home to him the need for the Army to hold accountable the commanders involved, to emphasize that standards must be upheld.
Retired Army Col. James Lacey, a veteran of the 101st and 82nd airborne divisions, said it was particularly "sad to think that all of this could have been avoided by one strong captain who had a basic education in the difference between right and wrong. I think about many of the officers I grew up with in the infantry and what they would have been like as company commanders at that prison. Would they have walked around checking on their men day and night? Damn right they would. Would they have checked with their [noncommissioned officers] . . . to get the pulse of the unit? Damn right again."
Rep. Jim Marshall (D-Ga.), a son and grandson of Army generals who was a reconnaissance platoon sergeant in the Army during the Vietnam War, said he was surprised by the account in the Fay report of enlisted soldiers telling an officer from another unit to leave them alone when he told them to stop beating an Iraqi detainee. "It is completely unacceptable to have an Army in which a lieutenant would see behavior like that and not stop it," he said. "If that is symptomatic of today's officer corps, that needs to be changed."
Kern said yesterday that although he is troubled by the abuses, he wants to remind the public that those responsible represent a tiny fraction of the more than 200,000 U.S. troops and civilians who were in Iraq at the time, doing their jobs admirably.
"We have all these people who are every single day going out there doing the right thing, more than 900 have been killed," he said. "We have people who are conducting interrogations correctly, we have people who are conducting security correctly, we have people who we know stories of where they are sharing food, helping people, doing things the right way. We have thousands of soldiers, sailors, airmen, Marines, that are out there rebuilding schools, doing good things.
"And not only does it trouble me because they feel the same condemnation that all of us do about Americans doing this, but they continue to do the right thing," Kern said, "and we're missing that."