Carter: The 'I followed orders' defense
Likely defense in Abu Ghraib abuse trial
By Phillip Carter, FindLaw Columnist
Special to CNN.com
(FindLaw) -- Pfc. Lynndie England is notorious as the female soldier who is seen grinning in many of the Abu Ghraib prison abuse photographs. In one photo, she holds an Iraqi detainee on a leash.
England appeared last week at a military pretrial hearing on alleged misconduct at the Iraqi prison.
It's likely the hearing officer will recommend that she face a court-martial -- the equivalent of a felony criminal trial -- on 19 charges. A conviction could mean up to 38 years in a military prison.
At the court-martial, England likely will raise a "superior orders" defense.
Generally speaking, all soldiers must follow the orders of their superiors. The superior orders defense is the corollary to this rule; it is an affirmative defense to any charge where a soldier was ordered to do something, and then prosecuted for that act.
Rule 916 of the Manual for Courts Martial states that "[i]t is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."
There are two issues: First, was England actually "acting pursuant to orders"? And if so, did she know -- or would a person of ordinary sense and understanding have known -- that those orders were unlawful? If not, the defense is established.
Fellow soldiers say no orders given
To prevail in her defense, she must prevail on both issues.
England and her lawyers have said she was ordered both to mistreat Iraqi detainees, and to take photographs of the mistreatment, in order to soften up detainees for future interrogation by U.S. intelligence personnel.
In May, Carl S. McGuire -- England's former defense attorney -- told the Washington Post that, "People told Pfc. England, 'Hold that leash,' told her to smile, so they can show the photos to subsequent prisoners."
Capt. Jonathan Crisp, England's military defense attorney, suggested in court that her actions were part of a larger Army plan to "set the conditions for interrogations."
This plan, he suggested, was developed by Maj. Gen. Geoffrey Miller, who headed the prison at Guantanamo Bay before taking over the Abu Ghraib prison. It employed tactics such as sleep deprivation, strange meal patterns, stress positions and other psychological devices to break down detainees in order to make them talk to interrogators.
Special Agent Warren Worth, an Army criminal investigator, testified last week that there was confusion at Abu Ghraib over where the outer limits of this authority lay, and how far the military police soldiers (like England) should go in softening up detainees. "Some of the soldiers alluded to military intelligence possibly saying to 'give them the treatment' or soften them up," Worth said.
But vagueness and confusion about what was expected of soldiers are not enough to establish the defense.
The lack of supporting testimony -- and the existence of contrary testimony -- will be a hard blow to England's attempted defense.
Army Spec. Joseph Darby said, "To my knowledge, ma'am, they were never ordered to do anything." As the soldier who blew the whistle on the Abu Ghraib scandal -- by passing a CD-ROM full of incriminating photographs on to Army criminal investigators -- Darby has established his credibility in the eyes of many.
At the pretrial hearing, Capt. Donald Reese, England's immediate commander, denied his soldiers were ever ordered to beat detainees or sexually abuse them.
Capt. Carolyn Wood, who played a key role in the intelligence operation at Abu Ghraib, testified that she was shocked, disappointed and outraged by the conduct -- which, she says, went far beyond the intelligence orders she had given to the MPs at Abu Ghraib.
At her court-martial, England will very likely testify on her own behalf -- and will very probably identify the person who, she says, ordered her to abuse prisoners.
She did not testify at the pre-trial hearing because it would have meant waiving her Fifth Amendment right against self-incrimination.
Two reports may aid England's defense
Military officials have denied England's allegations that someone in the Pentagon or CIA chain of command ordered the abuses at Abu Ghraib.
Meanwhile, two reports may help England in her attempt to establish a "superior orders" defense.
The investigative report authored by Army Maj. Gen. Antonio Taguba found a pattern of misconduct at Abu Ghraib that implicated everyone from Pfc. England to the top general in Iraq. While the report does not actually say England herself was given orders -- which is what she must prove -- it does suggest she was not acting alone, and that her superior officers, too, might be culpable.
Moreover, the Taguba Report at least alludes to the existence of such orders.
Second, there is a May 2004 article by Seymour Hersh in the New Yorker magazine. The article indicates that the Abu Ghraib abuses were conducted at the direction of top Pentagon officials with the specific intent to coerce detainees into talking.
The Taguba and Hersh reports have not yet been offered into evidence by England's attorneys. Moreover, it's not clear they could be offered because of hearsay problems.
England's attorneys might try to put Taguba or Hersh on the stand to examine the basis of the statements -- though obviously, as a journalist, Hersh might refuse.
In addition, they could ask the court to direct Hersh to reveal his anonymous sources in the interests of justice -- a request that would pit Hersh's First Amendment's rights against England's Sixth Amendment right to a fair trial.
Seeking dozens of witnesses
England's attorneys have asked the pre-trial judge, Col. Arn, for permission to call 50 additional witnesses at the pre-trial hearing, including Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, former top commander Lt. Gen. Ricardo Sanchez, and 800th MP Brigade commander Brig. Gen. Janis Karpinski.
The defense team plans to ask these witnesses about the existence of various orders geared at "softening up" detainees.
The judge halted the pre-trial hearing in order to consider this motion. The judge will likely allow at least some of these witnesses whose testimony may add credence to England's allegations that she was just following orders.
Even if England can prove she acted under orders, she must also prove that she did not -- like an ordinary person would not -- know those orders were unlawful. But that will be very hard to prove here.
International law and military law are clear that any order to abuse prisoners in the ways depicted in the Abu Ghraib photographs is unlawful on its face.
Some legal ambiguity surrounds the use of certain methods described by Capt. Wood in her testimony, such as the use of sleep deprivation and stress positions for detainees.
And the now-infamous torture memoranda produced by the Justice Department and Defense Department may be taken to create more ambiguity.
But the illegality of many of the acts with which England is charged is not at all ambiguous. And England -- and any other soldier -- should have known that these acts -- such as sexually assaulting an inmate -- were illegal.
In the upcoming court-martial, prosecutors will have to prove every element of every charge beyond a reasonable doubt.
It is overwhelmingly likely the orders will be deemed unlawful -- a decision to be made by the military judge, not the jury.
She will still have to convince the jury that she did not -- and an ordinary person would not necessarily have -- known the orders were unlawful?
As with civilian criminal defendants, much will depend on how much exculpatory evidence exists -- and is admissible.
The jury will be composed of military officers and soldiers. (In a general court-martial, the jury includes at least 5 soldiers, usually from the same command as the defendant. An enlisted defendant, like Private First Class England, has the right to a jury where 1/3 of the members are enlisted personnel like her.)
Some of the jury members may have seen recent combat in Iraq, or have been in combat situations in the past. Possibly, they may be open to the "superior orders" defense, or a separate defense based on a change in England's mental state due to combat stress.
As in civilian criminal court, all bets are off when the case goes to the jury.
Unlike the criminal process for civilians, to convict on non-capital charges such as these, only two-thirds of a military jury need find the defendant guilty. Military juries vote only once, on a secret ballot, and the defendant is acquitted if a two-thirds majority is not reached on that single vote.
Chances of winning an appeal
If England is convicted, she will may appeal her conviction through the military court system. Given the severity of the charges against her, she has an automatic right of appeal to the Army Court of Criminal Appeals which will review the case for legal error, factual sufficiency, and sentence appropriateness.
After that, she may appeal her case to the U.S. Court of Appeals for the Armed Forces -- which is equivalent in stature to a federal appellate court.
Finally, from there, England could take her case all the way to the U.S. Supreme Court. But her odds of being granted certiorari are as good as any other criminal defendant -- which is to say, very slim.
Phillip Carter, a FindLaw Columnist, is a former U.S. Army officer who writes on national security issues; he recently graduated from UCLA Law School and will join the Los Angeles office of McKenna Long & Aldridge this fall.