Defense attorneys for a military police soldier charged with detainee abuse at the Abu Ghraib prison in Iraq argued in court Monday that their client was a pawn in a widespread policy of abusive military intelligence procedures, citing two extensive Pentagon investigative reports released last week as evidence that the soldier was following orders.
The argument, on behalf of Pfc. Lynndie R. England, 21, was the first opportunity for lawyers representing seven low-ranking MPs to use the government's own investigations to defend soldiers charged in the abuse case. The two investigations -- one led by a former defense secretary and the other by three Army generals -- identified nearly 50 soldiers who either were involved in abuse at Abu Ghraib or did not report it. Both reports also criticized top commanders in Iraq for leadership failures, and the Army's report found that military intelligence interrogators asked MPs for help using harsh -- and in some cases illegal -- tactics against detainees.
That conclusion contradicted early Pentagon statements that the MPs were acting alone when they sexually humiliated and beat detainees amid the chaos at the prison outside Baghdad. It also bolstered England's contention that the acts shown in a series of shocking digital photographs -- in which she is posing cheerily next to naked detainees or holding one detainee at the end of a leash -- were not her idea.
"This was not a rogue band of soldiers," said Richard A. Hernandez, England's lead civilian attorney, arguing that the reports show the techniques were widespread. "This is clearly something that went beyond this individual and beyond these accused."
Later in the hearing, Hernandez was more direct: "She was working under military intelligence interrogation procedures," he said.
Military prosecutors immediately fired back, the first time they have argued publicly that the focus should be on the individuals who abused detainees and their allegedly illegal actions, not on the environment that led them to do it. Capt. John Benson called the defense's line of argument "completely ridiculous" and said the court is "consistently being fed these ridiculous lies."
Benson said that England's alleged wrongdoing is the only thing that should be on the table, and that her actions were clearly illegal. He said that even if military intelligence had given her an order to abuse, she had a duty to disobey the unlawful orders.
"The defense wants to pull us very far afield from the charges in this case," said Benson, one of three prosecutors presenting the case. "If 44 other people were included in this conduct, then 44 people should be brought to justice."
England's proceeding -- called an Article 32 hearing -- is designed to investigate the 19 charges against her, similar to a civilian grand jury. England, who is nearly eight months pregnant, could face 38 years in prison if convicted of all charges, which include appearing in sexually explicit photos with Spec. Charles A. Graner Jr., whom officials have called a ringleader in the abuse.
In brief testimony on Monday, a soldier from England's unit who has pleaded guilty to abuse charges said that Graner and Staff Sgt. Ivan L. "Chip" Frederick had told him that military intelligence soldiers instructed them to "soften up" detainees.
Spec. Jeremy C. Sivits, who is serving a one-year sentence at Camp Lejeune, N.C., testified by telephone that he took photographs of some of the abuse one night because he did not want the other soldiers to dislike him. He said Graner ordered him not to talk about what he saw, adding that he believed the soldiers had received orders to break the detainees.
"They had never lied to me about anything before, so I figured that's what they were told to do," Sivits said. Last week, Frederick's lawyer said his client would plead guilty in the case, and the Associated Press quoted his lawyer Monday as saying those charges would be assault, maltreating Iraqi detainees and committing an indecent act.
Another soldier at the prison, Kenneth Davis, who held the rank of sergeant until he left the military in July, testified Monday that he witnessed some abuse at the hands of military intelligence (MI) personnel, including one episode in which MI soldiers told Graner to strip a detainee. He said he reported the abuse to an MP lieutenant, who told him to stay out of MI's way as they did their job.
Davis also said he received an e-mail from Graner a few weeks ago that included a document from a superior praising Graner's work. The letter said that Graner was "doing a fine job" and that he was receiving "many accolades from MI, specifically from Lt. Col. [Steve L.] Jordan" -- the second-highest-ranking MI officer at the prison. Davis also said that Graner at one point told him that he was uncomfortable following MI orders to yell at detainees and do things that he considered morally or ethically wrong.