Guard Can't Compel Witness Testimony

By Leon Worden
Signal City Editor

Friday, June 11, 2004

ne of the "few bad apples" accused of abusing Iraqi detainees is going after the whole tree — but there's no guarantee all the branches will fall in line.
    "I would not expect that the vice president or the defense secretary would appear at an Article 32 hearing," a senior Pentagon spokesman said Thursday.
    Vice President Dick Cheney and Defense Secretary Donald H. Rumsfeld are two of literally 100 witnesses attorneys hope to hear from later this month when an Army official decides whether Pfc. Lynndie England will face a court-martial.
    Attorneys for England, perhaps the most prominent of seven guards to face criminal charges of prisoner abuse at Abu Ghraib, issued a witness list this week that runs the gamut from high government officials to fellow low-level guards to former Iraqi detainees.
    The list includes John B. Israel, a 48-year-old Iraqi-American translator from Canyon Country who was accused in an Army report of sharing overall responsibility for the abuse. England's attorneys want him and others to tell what went on inside Abu Ghraib prison.
    But they can't force them to do so.
    Under Army regulations, defense attorneys don't have the equivalent of subpoena power at an Article 32 hearing, where a military judge or investigating officer decides whether there is sufficient evidence to warrant a court-martial.
    An Article 32 hearing is a bit more favorable to the defense than a civilian grand jury hearing in that the defense can present witness testimony. But it's a little less favorable to the defense than a civilian preliminary hearing because the defense can't require witnesses to appear.
    "Both the defense and the prosecution must show that a witness' testimony makes the difference between the case moving forward or not," a Pentagon official said. "The testimony would have to be substantial enough (for the hearing officer) to know whether the case moves forward or not."
    The decision about who testifies could be made before the opening day of the hearing, which for England is tentatively set for June 22 at Ft. Bragg in North Carolina. But the decision might not come until the hearing is under way.
    If a witness is needed, the Army will get him or her there, the spokesman said.
    Blake Ellis, a representative of the 21-year-old Army reservist whose image is seen smiling and pointing at naked Iraqi prisoners in photographs published worldwide, said it's critical for England's defense team to be able to call a variety of witnesses who can testify that she acted on orders of superiors.
    And Ellis hasn't given up on Rumsfeld just yet.
    "We have heard from the Department of Defense that (Rumsfeld's) office is clearing his calendar to allow him to be there, and we're excited about that," Ellis said earlier this week.
    "We will, of course, be ready with the important questions to ask him," Ellis said without elaborating.
    Others are wanted for questioning about their specific recollections, he said.
    "We want to find out if any of (the Iraqi ex-detainees) saw other people giving orders at the prison," he said.
    The Pentagon spokesman admitted it could be difficult for the government to produce ex-prisoners who are in Iraq.
    But he said some witness testimony could be presented in the form of written or videotaped statements.
    Ellis said it's unknown whether the hearing officer can demand the testimony of Israel and other civilians who were working at the prison last fall under Army intelligence contracts.
    "We need to review their contract and find out if it compels them to appear," he said. "If it's not stipulated in the contract (shielding them from testifying), then it's a possibility.
    "We're asking the Army to make (the witnesses) available," he said. "It's the investigating officer's decision. The government has been served with the list."
    The Pentagon official said the government will cooperate with the defense's requests "within reason."
    "We support the non-judicial system of punishment," he said, referring to the military system. "The Department of Defense upholds and abides by the rule of law."
    Asked how many witnesses on the list he'd consider friendly, Ellis said, "I don't think a whole lot."
    He said England's attorneys have communicated with some of the other guards' attorneys but said there is "no actual coordination" among them.
    "It's not a united front," he said. "Each case is going to have to stand on its own merits."
    If the Article 32 hearing results in a general court-martial and England is found guilty of each charge and specification, which haven't been officially announced, she could face a maximum sentence of 35 years in a military prison, Ellis said.