CounterVortex

At least it makes the front page of the New York Times. From the Feb. 13 edition:

Years After 2 Afghans Died, Abuse Case Falters

By TIM GOLDEN

FORT BLISS, Tex. In the chronicle of abuses that has emerged from America’s fight against terror, there may be no story more jarring than that of the two young men killed at a United States military detention center in Afghanistan in December 2002.

The two Afghans were found dead within days of each other, hanging by their shackled wrists in isolation cells at the prison in Bagram, north of Kabul. An Army investigation showed they were treated harshly by interrogators, deprived of sleep for days, and struck so often in the legs by guards that a coroner compared the injuries to being run over by a bus.

But more than a year after the Army began a major push to prosecute those responsible for the abuse of the two men and several other prisoners at Bagram, that effort has faltered badly.

Of 27 soldiers and officers against whom Army investigators had recommended criminal charges, 15 have been prosecuted. Five of those have pleaded guilty to assault and other crimes; the stiffest punishment any of them have received has been five months in a military prison. Only one soldier has been convicted at trial; he was not imprisoned at all.

While military lawyers said the pleas were negotiated in exchange for information or testimony against other soldiers, the prosecution has gained no evident momentum. Four former guards accused of assaulting detainees were all acquitted in recent courts-martial. Charges against a fifth former guard were dropped.

In one of the prosecutors’ most important tests, the Army last month abandoned its case against Capt. Christopher M. Beiring, the former military police commander at Bagram and one of the few American officers since 9/11 to face criminal charges related to the abuse of detainees by the officers’ subordinates.

“If this case were to go to trial, it would be a big, ugly loser for the government,” Lt. Col. Thomas S. Berg, the Army judge who oversaw Captain Beiring’s pretrial inquiry, wrote in a report on the evidence.

In recommending dismissal of the case, Colonel Berg argued that the prosecutors had overreached, charging Captain Beiring with command failures that they could not prove. The judge also highlighted a problem that has frustrated the prosecutors in their effort to hold soldiers accountable for breaking the rules at Bagram: those rules were not at all clear.

Indeed, more directly than any other episode since 9/11, the Bagram cases have exposed the uncertainty and confusion among military interrogators and guards about how they were required to treat terror suspects after President Bush decided in February 2002 that they would not be protected by the Geneva Conventions…

“The president of the United States doesn’t know what the rules are!” said Capt. Joseph Owens, a lawyer for one of the accused interrogators, Pfc. Damien M. Corsetti, who is one of two former Bagram soldiers still facing court-martial. “The secretary of defense doesn’t know what the rules are. But the government expects this Pfc. to know what the rules are?”

The prosecutors have stumbled over a series of other obstacles as well, some of them plainly visible. After a criminal inquiry that took almost two years, witnesses in the case were scattered, their memories dimmed. A crucial witness in three of the trials changed his story repeatedly, leading to acquittals in each case. Other potentially important figures who had left the military were largely ignored.

In the modest Fort Bliss courtrooms where the trials have been held, the two Afghan victims have rarely been evoked, except in autopsy photographs. But much testimony focused on hardships faced by the soldiers themselves: the poor training they received, the tough conditions in which they operated, the vague rules with which they had to contend. As in other recent abuse cases, Army judges and jurors also seemed to consider the soldiers’ guilt or innocence with an acute sense of the sacrifices they had made in serving overseas.

Lt. Col. Joseph A. Simonelli Jr., who sat on the jury for a former Bagram guard who admitted to repeatedly striking one of the detainees who died, was asked after the trial how he had viewed the defendant. The soldier, convicted of maiming, assault and other crimes, was sentenced to only a demotion in rank, and honorably discharged.

“This individual was an American citizen who had been called up,” Colonel Simonelli, a Fort Bliss battalion commander, said in an interview. “He had volunteered, and when they called upon him to perform his duties in a time of war, he did it without question.”

Standard Procedure

In the first case they filed, in August 2004, Army prosecutors charged a Reserve military police sergeant, James P. Boland, with assaulting and maltreating one of the detainees who died at Bagram “by shackling him in a standing position with hands suspended above shoulder level for a prolonged period of time.”

The detainee, a 22-year-old taxi driver who used the single name Dilawar, had been picked up as he drove some passengers past a remote American fire base that had come under rocket fire hours before. He was found dead in a cell at Bagram on Dec. 10, 2002, a victim of what Army medical examiners later concluded were “blunt-force injuries” to his legs. The prolonged shackling had also contributed to his death, coroners ruled.

Another detainee, known as Mullah Habibullah, had been found dead six days earlier under similar circumstances. Many guards from Sergeant Boland’s Reserve unit acknowledged to investigators that they had kneed the two prisoners in the thighs for being unruly or disobedient; they said the technique had been widely used.

But by charging Sergeant Boland for his role in the overhead shackling, a common method to keep prisoners from sleeping or to punish them, the prosecutors were effectively arguing that one of the standard procedures at Bagram had itself been criminal.

That assertion raised the possibility that senior officers at Bagram and even Pentagon officials could also be held liable for authorizing the practice or acquiescing in it.

According to one of dozens of confidential Army documents recently obtained by The New York Times, agents of the Army’s Criminal Investigation Command made it a high priority in the summer of 2003 to determine “who authorized the forced-standing and no-sleep practices” at Bagram. In a later internal report, a special task force of agents from the division reported that “the responsibility of supervisory personnel” in the Bagram officer corps remained “under continued investigation.”

Yet, for reasons that are unclear, it was not until April 2004 16 months after the two deaths that investigators even began to question officers who had served on the command staff at Bagram, the documents show.

Most of the senior officers were eventually questioned. But the possibility that the Bagram prosecutions might lead to higher-ranking authorities or to a clarification of the rules did not materialize.

Army investigators had recommended charges of assault, maltreatment and dereliction of duty against the former noncommissioned officer in charge of the Bagram interrogators, Staff Sgt. Steven W. Loring. But Mr. Loring, who left the Army at the end of 2003, was rarely mentioned in court and never charged.

A military official familiar with the Loring case said the Army referred it to the Justice Department, which declined to prosecute. Prosecutors at Fort Bliss would say only that Mr. Loring “left the Army prior to the transfer of the Bagram cases to Fort Bliss.”

Nor is the Army expected to prosecute the officer who led Mr. Loring’s platoon, Capt. Carolyn A. Wood, despite a formal recommendation by the Criminal Investigation Command that she be charged with dereliction of duty, Defense Department officials said.

Last spring, the Bagram prosecutors dropped all charges against Sergeant Boland, who has since left the military, arranging instead for a letter of reprimand. That letter, dated June 22, 2005, said his failure to seek medical help for the prisoner or prevent his assault by other military policemen “contributed to the death of Mr. Dilawar,” a copy of the document shows. In the charges they later brought against 10 other former Bagram guards, they never again cited the overhead shackling as evidence of maltreatment or assault. They declined to say why.

An Honorable Discharge

Throughout the trials, the prosecutors cast the Bagram abuses as straightforward crimes: whatever the soldiers may have lacked in training or guidelines, the prosecutors said, they were never allowed to strike shackled prisoners merely because they were, as many guards had insisted, “noncompliant.”

At the same time, several Army lawyers familiar with the case said, the prosecution never had much hope of pressing murder charges. So many guards had admitted to striking the two men, the lawyers said, that it would be almost impossible to fix blame on one or even several of them. Moreover, there were few witnesses to the beatings, and almost none who were not themselves implicated in wrongdoing.

The closest the prosecution team came to assigning responsibility for the deaths were charges of involuntary manslaughter, maiming and other crimes against one of the military policemen, Specialist Willie V. Brand. He had spoken openly with Army investigators long after others had invoked their right to remain silent, and the story he told was chilling. By his own admission, Specialist Brand, then 24, had repeatedly struck both of the detainees who died, kneeing them in the thigh with a technique that some of the unit’s reservists had taught to others.

Specialist Brand had told investigators that he kneed Mr. Dilawar more than 30 times, because “I was fed up with him,” and added that he struck “a lot of other” detainees as well. He said “90 percent” of the other guards who worked the Bagram isolation cells on the night shift also used knee strikes, including some who struck Dilawar because they were amused to hear him cry out, “Allah!”

Army prosecutors described Specialist Brand’s actions as brutally excessive. But jurors also heard Mr. Boland, testifying for the defense, describe the “fuzzy” and “inadequate” training of the reservists.

The jurors also asked questions of their own, as they are allowed to do in courts-martial. Many of them centered on the guards’ rules for using force, how they were trained and how they were supervised. They also heard six other soldiers testify that they, too, had used knee strikes and had been trained to do so.

“To me what he did may have been a contributing factor” in Mr. Dilawar’s death, Colonel Simonelli, a juror in the case, said of Specialist Brand. “But was it the most important factor? Based on my limited knowledge, I cannot confirm that to be the case.”

The prosecutors did not mention the young wife and a 2-year-old daughter that Mr. Dilawar left behind, or that interrogators had concluded before his death that he was almost certainly innocent of any involvement in the rocket attack on the American base. The jury convicted Specialist Brand of maiming, assault, maltreatment and making a false statement and could have sentenced him to 16 years in a military prison. Instead, after hearing about his sick wife and their indigent family of four children, they declined even to give him a bad-conduct discharge. The most serious charge against him, involuntary manslaughter, was dropped before the trial began.

Even Specialist Brand’s civilian lawyer, John P. Galligan, said he was stunned by the sentence: his client was reduced in rank to private, but not jailed or fined; he left the Army with an honorable discharge.

Questions Not Asked

The former Bagram interrogators who were prosecuted, all members of the 519th Military Intelligence Battalion from Fort Bragg, N.C., were not accused of any direct role in the two deaths. But their cases raised further questions about the possible responsibility of higher-ranking officers.

One interrogator who pleaded guilty to reduced charges, Specialist Glendale C. Walls II, acknowledged having pushed Mr. Dilawar against a wall and standing by as his partner, then-Specialist Joshua R. Claus, forced another prisoner to roll back and forth on the ground, kissing their boots.

Specialist Walls explained his misconduct in part by saying his superiors at Bagram had pushed him to be more aggressive in his interrogations. But he gave few details and prosecutors did not press him, saying later that his claims had been “fully investigated.”

But nor did they mention a secret memorandum showing that around the time of the two deaths, interrogators at Bagram were using new, aggressive methods that were not authorized for use in Afghanistan.

The 10-page memorandum, a copy of which was obtained by The Times, was written by the military’s acting chief lawyer at Bagram, Lt. Col. Robert J. Cotell Jr., on Jan. 24, 2003. It indicates that interrogators there adopted some of the more extreme interrogation methods that Secretary of Defense Donald H. Rumsfeld approved on Dec. 2, 2002, exclusively for use at Guantánamo Bay, Cuba.

(Mr. Rumsfeld rescinded those methods barely a month later, after complaints by the Navy general counsel, Alberto J. Mora, and other officials.)

Although military lawyers said the Bagram prosecutors were aware of Mr. Cotell’s memorandum, the document was never cited in court. Nor do the prosecutors or Army investigators appear to have asked intelligence officers at Bagram to specify what those harsher methods were, when they were used, who authorized them or whether they had any effect on the treatment of the two men who died, documents showed.

The prosecutors told The Times that the charges filed against former Bagram interrogators “were based on acts which exceeded the scope of the tactics permissible even under the referenced memorandum.

“Consequently,” they said, “the memorandum has no legal relevance to the Bagram prosecutions.” They did not answer questions about whether the harsher tactics were improperly used at Bagram or whether they might have contributed to the two deaths.

Shackling ‘Looked Bad’

The prosecutors had perhaps the hardest time with Bagram’s uncertain rules in the case of Captain Beiring, the only officer to face criminal charges.

Captain Beiring, the military police company commander, was charged with one count of making a false statement to investigators and two of dereliction of duty. Prosecutors said he had failed to properly train and supervise soldiers in the legal use of force and “the approved tactics, techniques and procedures in detainee operations.”

Colonel Berg, the judge who reviewed pretrial evidence, ruled that the dereliction charge was too broad and too vague, and he noted that the overhead chaining of detainees was “an approved practice” that was at least “acquiesced in by higher commands.” But he cited a more basic problem with the accusation.

“The government failed to present any evidence of what are ‘approved tactics, techniques and procedures in detainee operations,’ ” he wrote.

In recommending dismissal of the second dereliction count, Colonel Berg concluded that although both a senior detention officer and one of the command-staff lawyers at Bagram had instructed Captain Beiring to stop shackling prisoners after the death of Mr. Habibullah, the officers’ reasons “were not based on law, regulation or policy.” Rather, the two officers suggested in their testimony, they had acted simply because the shackling “looked bad.”

In an interview, Captain Beiring acknowledged that Mr. Dilawar, even if he was unruly, had not represented much of a threat to his soldiers, some of whom, he said, “clearly chose to do wrong.”

“Soldiers probably got tired of his [expletive],” he said. “Others probably said, ‘Let’s shut him up.’ He was thrashing about. Was he posing a death threat? Probably not. But are you going to take a spit in the face? I’m not.”

In the Afghan village where Mr. Dilawar lived, there has been little news of the Bagram trials. But members of his family responded serenely when told about the results of the prosecutions.

“We do not think that people should be in prison,” said one of Mr. Dilawar’s brothers, Shahpoor. “My brother is dead. If they arrest 10,000 Americans, what good will that do me?

“I am angry with them, but this was the will of God,” he added. “God is great, and God will punish them.”

See our last post on Dilawar’s case, and the torture scandal.