The Defense Rests

By Jean Aylward

Thursday's court proceedings began with the Defense's entry into the recordof two letters of stipulated testimony from S.Sgt Allan Wayne Smith, former headof the Quick Reaction Force at Abu Ghraib, and Navy dog handler MA2 Ashley Pankratz.The only live testimony of the day was from the former warden of Abu Ghraib,Maj. David DiNenna. DiNenna was questioned heavily by the Government's TrialCounsel, but he primarily stressed Smith's compliance with Gen. Sanchez's humane treatment orders and guidance. (Of course the "humane treatment" orders accompany an interrogation policy that provides for the use of dogs in interrogations). DiNenna painted Smith as a model soldier. Trial Counsel was unable to shake DiNenna's testimony. This allowed the Defense to rest its case on a strong note after presenting only six witnesses.

Recall that at Smith's pretrial hearing in July, DiNenna testified that he understood Maj. Gen. Geoffrey Miller "was sent over by the Secretary of Defense to take their interrogation techniques they used at Guantanamo Bay and incorporate them into Iraq." This aspect of how and whether interrogation techniques migrated from Guantanamo to Abu Ghraib was not really examined during the court martial.

An interesting question now is whether, for the majority of the charges pending against him that involve the use of an unmuzzled dog in interrogations and/or threatening detainees, Smith will be found to have possessed the requisite intent to commit the crimes alleged. To be found guilty of most crimes, the accused must be shown not only to have committed the prohibited act (actus reas), but also to have possessed the intent to violate the law (mens rea). The military judge will advise the panel members on these elements in Friday's jury instruction session prior to commencement of their deliberations.

Also, if Smith did not have reason to know the order was illegal, then he may be protected to some degree under the defense of superior orders. The Manual for Courts-Martial provides: "It 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." So, if the "no knowledge" prerequisite is met, if the Defense adequately shows that Smith was ordered to commit the offending acts and establishes who gave the orders, and convinces panel members that a reasonable person would not have known the orders to be unlawful, then Smith may escape punishment for his actions. Soldiers are required to disobey unlawful commands, but there will be an issue in this case as to whether or not the orders were obviously illegal. The Government has of course argued that Smith should have known the orders to use an unmuzzled dog in interrogations were unlawful and not authorized.

The superior orders defense also goes to the issue of command responsibility; that others at levels above Smith were responsible for issuing the policies that led to the abuses and/or failed to provide clear and proper guidance to their subordinates. The success of the superior orders defense in cases like this would only serve to further emphasize the need for the military to hold responsible those individuals who gave the orders, set the policies, and/or failed to clarify the policies that ultimately led to the abuses. Someone should be held accountable.

Closing arguments and jury instructions are scheduled for Friday morning. More reporting to follow…