On Thursday, CAAF affirmed a second case arising from maltreatment of detainees at Abu Ghraib, though this case was more complex than Harman. United States v. Smith, __ M.J. ___, No. 09-0169/AR (C.A.A.F. Feb. 4, 2010). Judge Baker wrote for the court. Chief Judge Effron concurred in part and concurred in the result.
Sergeant Smith was a doghandler MP at Abu Ghraib. Here are the facts that led to SGT Smith’s conviction:
Appellant and his working dog participated in the interrogation of detainee Ashraf Abdullah Al-Juhayshi. Testimony indicated that during this interrogation Appellant allowed his unmuzzled MWD to bark in Mr. Al-Juhayshi’s face and to pull a sandbag off his head with its teeth. On January 13, 2004, Appellant was seen by Sergeant (SGT) Ketzer with his unmuzzled, barking MWD in the doorway of the cell of two juvenile detainees. The detainees screamed with fear, and Appellant was overheard saying shortly thereafter: “my buddy and I are having a contest to see if we can get [detainees] to shit themselves because we already had some piss themselves.”
Id., slip op. at 4. As a result, he was charged with and convicted of offenses including conspiracy to maltreat prisoners and two specifications of maltreatment.
During the findings instructions on the offense concerning Mr. Al-Jahayshi, the military judge told the members:
An order to use military working dogs to aid in military interrogations, if you find such an order was given, would be an unlawful order. Obedience to an unlawful order does not necessarily result in criminal responsibility of the person obeying the order. The acts of the accused if done in obedience to an unlawful order are excused and carry no criminal responsibility unless the accused knew that the order was unlawful or unless the order was one which a person of ordinary common sense under the circumstances would know to be unlawful.
Id., slip op. at 12 n.7.
CAAF rejected a challenge to this instruction. CAAF observed:
COL Pappas [commander of the 205th Military Intelligence Brigade in Iraq] testified that he did not know why the interrogator’s notes stated that the use of MWDs [military working dogs] had been approved for Mr. Al-Juhayshi’s interrogation because the only use of the dogs he remembered was for one of three other high-value detainees. Staff Sergeant (SSG) Frederick, who had been the noncommissioned officer in charge of the confinement block, testified that Mr. Stefanowicz [a civilian contractor and interrogator at Abu Ghraib] told him that the use of dogs during the Mr. Al-Juhayshi interrogation had been approved. SSG Frederick, in turn, told Appellant to use his MWD during Mr. Al-Juhayshi’s interrogation. The record does not reflect what actions SSG Frederick authorized; neither does it indicate that SSG Frederick directed Appellant to remove the muzzle or to allow close contact between the dog and the detainee. Thus, while there is some evidence that Appellant received an order to use his working dog in the context of Mr. Al-Juhayshi’s interrogation, there is no evidence he received an order, lawful or otherwise, to remove his dog’s muzzle or have his dog remove Mr. Al-Juhayshi’s hood.
Id. at 8-9.
CAAF went on to hold that “if an order was given as Appellant argues it was, it did not issue from competent authority.” Id. CAAF observed that case law defines competent authority as “a person authorized by applicable law to give such an order” and observed that “[i]n the context of U.S. military operations in Iraq, Lieutenant General (LTG) Sanchez, CJTF-7 commander, directed that his express approval would be necessary to use MWDs for interrogations.” Id., slip op. at 10. CAAF observed that “there is no evidence in the record of trial that [LTG Sanchez’s] approval was sought or obtained in Mr. Al-Juhayshi’s case.” Id., slip op. at 10-11. CAAF concluded:
In short, neither COL Pappas, Chief Rivas, nor SSG Frederick were authorized to give such an order without LTG Sanchez’s approval. Since neither COL Pappas nor Chief Rivas could lawfully order a subordinate to act contrary to CJTF-7 policy, it would have been unlawful for them to order Appellant to use his MWD as he did. Thus, any order in this regard issued without LTG Sanchez’s authority would have been unlawful.
Id., slip op. at 11. In light of this resolution, CAAF noted that it didn’t need to decide whether anyone could lawfully order the use of a working dog to intimidate a detainee during an interrogation. Id., slip op. at 12 n.6.
The argument that an obedience to orders instruction should have been given in connection with the juvenile detainees was more easily rejected, since the evidence indicated that there was no immediate plan to interrogate them. Use of the dog to intimidate the juveniles appeared to be part of a contest to make them defecate rather than a means of gathering intelligence.
Finally, CAAF analyzed whether an Article 93 offense could be based on a doghandler’s abuse of a detainee. The central question there was whether a detainee was subject to the doghandler’s orders. Yes, held CAAF. CAAF found that both Article 93’s text and case law applying Article 93 indicate that a maltreatment conviction can be based on conduct toward individuals who aren’t in the military. CAAF found that the detainees were subject to the doghandlers’ orders, in part analogizing to the relationship of a prisoner and a prison guard. CAAF also cited the Third and Fourth Geneva Conventions in support of this conclusion. Id., slip op. at 18 & 18 n.8.
Chief Judge Effron wrote separately to make three points, including the following: “In a particular case, there may be significance under R.C.M. 916(d) to the distinction between an order that is unlawful because of an administrative defect, as in this case, and an order that is unlawful because it commands the commission of a crime, as in Calley.”