Sentence Imposed

Sgt. Cardona had faced a maximum of 3 1/2 years prison time for dereliction of duty and assault, the two counts for which he was found guilty by the military jury yesterday.  The sentence the jury imposed today does not include any prison time, however.  Sgt. Cardona received 90 days hard labor, a reduction in rank to specialist, and a fine of $600/month for 12 months.  In the words of Cardona's civilian defense lawyer, as reported by AP:  "It wasn't an acquittal, but it was pretty darn good." 

What conclusions can we draw?  Well, we can't read the minds of the military jury panel, but a couple of things were clear from the court martial proceedings:  the panel had before it evidence of an environment at Abu Ghraib where the rules were unclear and confusion prevailed about the standards for detainee interrogation and detention.  Neither absolves Sgt. Cardona of wrongdoing -- the panel after all found him guilty of not handling his dog properly and of using his dog to threaten a detainee (during detention, not interrogation) -- but clarity of rules and adequate training and guidance are the responsibility of senior officers.

In Human Rights First's study of detainee deaths in U.S. custody in Iraq and Afghanistan, we found (as of February of this year) only 12 cases in which anyone was punished in any way for a detainee death (see especially the Accountability chapter, starting at p. 35).  In eight of these cases, we considered the punishment lenient, compared to the circumstances of death.  This was particularly the case in four deaths, which occured as a result of torture – the highest sentence was five months in prison.  It's hard to assess systemically the adequacy of punishment when, as in the Cardona case, we don't know the deliberations of judges and juries.  But it is a fact that in each torture case, in which deaths resulted from, among other things, suffocation and beatings, the accused raised as a defense a lack of training or that bad acts were authorized by their commanders.  And prosecution results suggest that military judges and juries are responding to this defense.  In a case Human Rights First observers also monitored , Chief Warrant Officer Lewis Welshofer argued that stuffing a detainee in a sleeping bag was a stress position authorized by General Sanchez in Iraq, and presented evidence that Welshofer's own superior, Major Jessica Voss signed off on it (and her superior, a Lt. Col., also later expressed support for Welshofer's role).  Welshofer was charged with murder for the detainee's death by suffocation but found guilty of negligent homicide; he got a reprimand, a $6,000 fine and 60 days of confined movement.

Sgt. Cardona was not accused of treatment that resulted in a death, but his defense was similarly premised on evidence of confusing doctrine that did allow for the use of dogs during interrogation at various times and places, and unclear or non-existent rules about how dogs and use of force could be used in detention operations.  That defense appears in large measure to have been successful.

These issues go beyond Sgt. Cardona's court martial alone -- and they aren't going away.  The Pentagon has issued a directive prohibiting dogs from use during interrogation, but we need similar clarity on a host of techniques that were authorized at the highest levels of command but that are unlawful (and lead to detainee abuse), including waterboarding, sleep deprivation and the use of stress positions.  We're still waiting for revisions to the Army Field Manual on Interrogation, which are being debated.  Among the topics for debate is whether the manual will include a secret annex and separate interrogation techniques for so-called enemy or unlawful combatants.  But if the more than two years of experience and investigations since Abu Ghraib have taught us anything, it is that the Interrogation Manual must fully reflect the McCain Amendment, which prohibits torture and cruel treatment and demands a clear, uniform set of standards.  Anything less and abuses will likely continue.

Guilty verdict

The military jury found Sgt. Cardona guilty of two of the nine counts against him:  (1) dereliction of duty for failing to handle his dog properly and for authorized purposes, and (2) assault for unlawfully threatening a detainee with his unmuzzled dog.  He was acquitted of the other seven counts, including the more serious charges of conspiracy and cruelty and maltreatment.  Sgt. Cardona faces a maximum of 3 1/2 years of prison time; the exact sentence will be determined by the jury.  More details to come.

The jury continues to deliberate; Capt. Wood testifies in another abuse court martial

Jury deliberations are still going on at the Cardona court martial.  Meanwhile,   AP reports that, yesterday, Capt. Carolyn Wood was called as a witness in another abuse court martial, this time of a military interrogator under her command in Afghanistan. The interrogator, Private First Class Damien Corsetti, "is accused of hitting, kicking and threatening to sexually assault detainees" in late 2002 at the U.S detention facility in Bagram, Afghanistan.
  
  Tim Golden of the New York Times wrote a series of excellent articles (subscription required for all) about detainee abuse at Bagram, including, specifically, horrific beatings that lead to the deaths of two detainees.  In one, a May 20, 2005 story, Corsetti is described "lightheartedly" by one of his fellow soldiers as "the King of Torture."   But Capt. Wood disclaims any knowledge of alleged wrongdoing by her subordinate:  according to yesterday's AP report, Capt. Wood testified that she never saw Corsetti "do anything wrong."  
  
  Last week, I'd referred to Capt. Wood as one of the "Where's Waldos" of the torture and abuse scandal -- abuses took place under her watch in both Afghanistan and Iraq.  It now turns out that the defense in the Corsetti case is raising issues similar to those the defense argued in the Cardona court-martial:  the rules on interrogation of detainees were unclear.  Of course, Capt. Wood bears part of the responsibility for setting clear rules and making sure those under her command were properly trained.  She has not, however, been held accountable for her role in policies and practices (including any failure to issue clear and lawful guidance) that contributed to detainee abuse.  Yesterday, AP reports, Capt. Wood testified at her subordinate's court martial under a grant of immunity from prosecution.
  
      

The jury deliberates

Both prosecution and defense presented closing arguments yesterday and the jury began deliberations, which continue today.  At the March trial of Sgt. Michael Smith, with whom Sgt. Cardona is accused of conspiring, the jury deliberations took 18 hours, so a verdict could come as early as today.

The Task Force 121 Connection

Sometimes, the obvious bears repeating:a court martial like that of Sgt. Santos Cardona, accused of using his military dog to threaten and abuse detainees, is critical to determine individual wrong-doing, but it's only a piece of the larger torture and abuse scandal. It's no substitute (and shouldn't be) for the necessary systemic and thorough investigation into events that took place across Guantanamo, Iraq and Afghanistan, and the role and responsibility of senior officers – one of the most important ways the U.S. government can say to all military personnel that abuses will not be tolerated.

The obvious was brought home during testimony on Thursday from Capt. Carolyn Wood.Now, Capt. Wood is one of the "Where's Waldos" of the abuse puzzle; she was posted to both Afghanistan and Iraq, and some of the worst abuses that have yet come to light appear to have been committed under her watch. In late 2002, Capt. Wood was in charge of the 519th Military Intelligence Battalion in Afghanistan.Soldiers under her command were implicated in the deaths by torture of two Afghan detainees, Habibullah and Dilawar (see. pp. 14 and 15).Capt. Wood and members of her battalion were then transferred to Iraq, where, in July 2003, they were assigned to Abu Ghraib.

Capt. Wood testified that, at Abu Ghraib, she oversaw the "screening and collection [of intelligence] operation for detainees" and became the "officer in charge for military intelligence." Sgt. Cardona's civilian defense lawyer, Harvey Volzer, asked Capt. Wood whether she was asked when she arrived to develop interrogation "rules of engagement."[In the context of Abu Ghraib, the terms "interrogation rules of engagement," or "IROE" were used to refer to authorized interrogation techniques; here is one version of the rules of engagement developed by Capt. Wood and posted for interrogators at Abu Ghraib.] Capt. Wood said no – she testified that she had been provided a copy of the rules of engagement for another task force, which she submitted to her chain of command for approval. Volzer asked which task force Wood had been referring to and Wood responded: Task Force 121.My pen faltered in my note-taking.

Task Force 121 (or TF-121), which has also been referred to as Task Force 6-26, was created in the summer of 2003 and was an elite, joint military-civilian unit that included CIA and Special Operations forces, assigned (according to various reports) to search for high-ranking members of the Saddam regime and/or weapons of mass destruction. By August 2003, the military Special Operations members of TF-121 were reportedly using interrogation methods so harsh and aggressive that the CIA barred its officers from participating. By December 2003, the report of an internal military investigation conducted by retired Col. Stuart Herrington (which has not been released), found that, according to the Washington Post, TF-121 members "had been abusing detainees throughout Iraq and had been using a secret interrogation facility to hide their activities." The Post quotes from the investigation report:"Detainees captured by TF 121 have shown injuries that caused examining medical personnel to note that 'detainee shows signs of having been beaten,'" . . . "It seems clear that TF 121 needs to be reined in with respect to its treatment of detainees."  In his testimony from the Taguba investigation Col. Steven Jordan, who last month was charged with cruelty and maltreatment and dereliction of duty for his role at Abu Ghraib, indicated that TF 121 had also abused detainees at Abu Ghraib.

In the military courtroom, Volzer asked Capt. Wood whether she "made use of" the TF-121 rules of engagement.Wood did not directly respond – she repeated that she had "made the recommendation" for the rules of engagement to be approved, but had not received approval.Volzer asked how Wood came to have them and Wood replied, "they came from my Battallion Commander." Volzer did not follow up.

Wood's testimony raises so many questions that will not be answered in the context of this court martial; here are just a few:what were TF-121's rules of engagement and did they deviate from existing military and civilian regulations and laws?And if so, how?Who approved them?How did Wood's battalion have them and were they used by military and civilian interrogators at Abu Ghraib, even in the absence of official approval?Was there tacit approval?What rules of engagement applied at Abu Ghraib before General Sanchez approved three different sets of rules in rapid succession in September and October 2003 (see my post from yesterday)?

Other snippets from Thursday that cry out for more explanation:the defense introduced testimony by stipulation (a process by which both sides agree to read to the jury and into the trial record testimony previously obtained from a witness without needing the witness to appear in person) from two separate sources, concerning the interest of Secretary of Defense Rumsfeld and then Deputy Secretary of Defense Paul Wolfowitz in Abu Ghraib. The first testimony was from Maj. Michael Thompson, who was assigned to the 325th Military Intelligence Battalion at Abu Ghraib and reported to Col. Pappas, then head of military intelligence for the prison. According to the stipulated testimony, Maj. Thompson was frequently told by Pappas' executive assistant that "Mr. Donald Rumsfeld and Mr. Paul Wolfowitz" had called and were "waiting for reports." The defense also read aloud stipulated testimony from Steve Pescatore, a civilian interrogator employed by the CACI firm, who recalled being told by military intelligence personnel that Secretary Rumsfeld and Wolfowitz received "nightly briefings." It's obvious why it may be to the government's advantage not to allow more questioning on the public record about the nightly briefings.I would guess that the defense thought it enough to give the jury this evidence of pressure from the top, as context for the high-stress environment in which the defense says Sgt. Cardona was working. But no official investigation to date has adequately examined the role of senior military and civilian command in the torture and abuse at Abu Ghraib and elsewhere.

The defense also elicited testimony that seemed intended to cast doubt on Maj. Gen. Miller's Wednesday testimony that, during a visit to Abu Ghraib in August-September 2003, he only recommended the use of military working dogs for detainee "custody and control" and benign collection of "passive intelligence." According to Lt. Col. Jerry L. Phillabaum, the commander of the 320th Military Police Battalion at Abu Ghraib, "Maj. Gen. Miller encouraged the use of dogs as much as possible" and said "they were used effectively at Abu Ghraib around prisoners." Maj. David DiNenna, the warden of Abu Ghraib prison, recalled a conversation with Maj. Gen. Miller in which they discussed the lack of resources at the prison and Miller asked about military working dogs. (Col. Pappas, head of military intelligence, was also present, according to DiNenna.)DiNenna testified that he told Miller he'd already requested working dogs for prison operations and Miller responded that he would ask for additional resources for Abu Ghraib, including the dogs. DiNenna added: "[Maj. Gen. Miller] said dogs were extremely effective.He looked at Col. Pappas and said how effective they were at Guantanamo .This struck me as funny . . . I was the MP looking for dogs, he answered MI."How effective this testimony will be in counteracting for the military jury the strength of Maj. Gen. Miller's denial that he recommended the use of dogs during interrogation is hard to tell.

In sum, on Thursday the defense introduced the testimony of seven "live" witnesses and two witnesses by stipulation.The testimony of all the witnesses, who included a military dog handling expert, was intended to bolster the defense's theme:Sgt. Cardona is a good dog handler and his actions were lawful and reasonable, especially in light of the confusion and chaos of military detention and interrogation operations at Abu Ghraib, where orders from above were non-existent, unclear or constantly changed.

Despite aggressive cross-examination of the witnesses by the prosecution, the defense may be making some headway.Late in the afternoon, at the end of the testimony by the dog handling expert, a panel member asked (in the military justice system, the jury may submit written questions to be asked of witnesses):"Is there any guidance within the Geneva Conventions or the law of war on the use of military working dogs on detainees or in interrogations?"

So in a story that started with the authorization by the Secretary of Defense of use of dogs during interrogation in Guantanamo, a member of the United States military, sitting on a jury in a court martial at Fort Meade, now wonders what the law is on how dogs can be used by the U.S. military on human beings.  Until then it had always been clear.The use of dogs to intimidate or threaten or degrade prisoners in interrogation is unlawful.It violates the Geneva Conventions.It violates U.S. policy as stated in the Army's field manual on interrogations, and it violates the prohibitions against cruel, inhuman and degrading treatment under domestic law and international treaties by which the United States is bound.It also violates the Uniform Code of Military Justice, under which Sgt. Santos Cardona has been charged with cruelty and maltreatment and dereliction of duty.In November 2005, the Pentagon issued a directive explicitly prohibiting the use of dogs in interrogations.

The dog handling expert to whom the question was posed had not read the Geneva Conventions and said the subject of use of dogs on detainees and during interrogations wasn't yet taught in the Army's dog handling school. The jury member's question went unanswered.And on the fifth day, the defense rested.  The trial is scheduled to resume on Tuesday.  Have a good weekend.      

General Miller Takes The Stand

The highest-ranking U.S. military officer yet to testify in a detainee abuse case took the witness stand on Wednesday, called by the defense in a case that accuses Army Sgt. Santos Cardona of using his military working dog to threaten, intimidate and attack detainees at Abu Ghraib prison.   Other senior officers have testified in military hearings and investigations that they understood Major General Geoffrey Miller, the man then in charge of the U.S. detention facility at Guantanamo, to have recommended the use of dogs and other detention and interrogation practices that led to many of the abuses in Iraq.  Maj. Gen. Miller was sent to Iraq by the Joint Chiefs of Staff to assess interrogation and detention operations (see Kern-Fay-Jones report, p. 58) at Abu Ghraib prison and later took command of all detention operations in Iraq.  His testimony had the potential to shed light on decisions at the highest level of command that resulted in deviations from existing Army law, regulations and doctrine.   Instead, Miller's testimony appeared intended to absolve him of any responsibility for the events that lead to Sgt. Cardona's court martial. 

 

The scope of Maj. Gen. Miller's testimony about interrogation methods had been limited by the Judge in evidentiary hearings last month:   Miller would only be asked to testify about the use of military working dogs.  Miller denied that he ever suggested military working dogs be used during interrogation in Iraq.  Miller admitted that military working dogs were used at Guantanamo where they were "very effective in assisting detention staff in maintaining custody and control" of detainees.   (Recall, of course, that the use of dogs on detainees during interrogation at Guantanamo was a technique approved by the Secretary of Defense as early as  November 27, 2002 dogs were used during interrogation at Guantanamo at least twice, but authorization was later rescinded.   In his testimony Miller ascribed the dogs' usefulness to "a cultural fear of dogs in Arab culture."  

 

On cross examination by the prosecution, Miller said that any conversation he may have had while in Iraq on his assessment visit about the use of dogs would have concerned detention operations – detainee "custody and control"; not interrogation.   He added that although he and his Guantanamo Staff Judge Advocate (a military lawyer) brought to Iraq authorization from the Secretary of Defense for specific interrogation techniques at Guantanamo, the authorization was a "baseline, a framework" for the lawyers at Abu Ghraib to develop their own rules, which would have to be approved by senior commanders.    On the proper role of military police in interrogation and detention operations, Gen. Miller testified that it was to "effectively conduct custody and control operations" of detainees, "secure them in detention centers and then provide assistance to the intelligence function that can be translated to the intelligence booth."   Translated, this meant, according to Miller, nothing more than that MPs should collect "passive intelligence" such as "who the detainee interacted with, who his friends were, whether he was a leader or a follower."  

 

Maj. Gen. Miller's testimony came late in the afternoon, at the beginning of Sgt. Cardona's defense.  The prosecution had finished presenting its case for Cardona's guilt after calling another 10 witnesses in quick succession.  So far, the defense had done a good job of making its arguments – unclear orders, a chaotic wartime environment, and a soldier following what he thought were the orders of his superiors – through the prosecution's witnesses.   But the tables seemed to turn when Sgt. Cardona's lawyers called first Maj. Gen. Miller and then Col. Pappas (the military intelligence commander at Abu Ghraib at the time) to the witness stand.   You'd be forgiven if you thought Miller and Pappas were witnesses for the prosecution.  In his testimony, Pappas appeared to move away in tone and emphasis from statements he had previously given to military investigators.   Pappas had told Taguba that "[Maj. Gen. Miller said that they used military working dogs, and that they were effective in setting the atmosphere for which, you could get information."   But in his testimony on Wednesday, Pappas recalled having with Maj. Gen. Miller "general discussion about military working dogs . . . [about] their being an effective tool at Guantanamo because of the Arab fear of dogs."  Pappas did not recall getting specific guidance about how dogs should be used. 

 

The testimony continues to leave many dots unconnected.  Despite Maj. Gen. Miller's testimony, in the month after Maj. Gen. Miller's visit, three sets of rules ( here, here, and here) on interrogation methods were issued, the first two of which specifically refer to the use of military working dogs as a technique.   The third memo contemplates the "presence" of muzzled dogs during interrogation and the use of dogs was included in Abu Ghraib's Interrogation Rules of Engagement, created by JIDC Interrogation Operations Officer, Cpt. Carolyn A. Wood as an aid for interrogators, which Col. Pappas testified was posted from its creation until at least the time he left Iraq.  

 

Perhaps most disturbing was Col. Pappas' testimony that he believed he was authorized to approve the use of muzzled dogs during interrogation, based on the conception of "Arab fear", as a "humane psychological deterrence"  permitted by the Fourth Geneva Convention (applicable to civilians).   It remains the case that Col. Pappas' opinion was reflected in U.S. policy and practice at Abu Ghraib for a period of at least eight months (Incredibly, even after Sgt.  Joseph Darby had reported the abuses in January and after Gen. Taguba's February investigation, it was reportedly not until May that commanders in Iraq banned " sleep deprivation, hooding, stripping and the use of dogs to frighten detainees. "  Col.  Pappas also admitted that contrary to the laws of war and military regulation, the Geneva Conventions were not posted for the detainees at Abu Ghraib.   The only copy was in a book Pappas had.

 

How then did any of this help the defense?  Well, that remains to be seen.   Sgt. Cardona's civilian counsel, Harvey Volzer, elicited testimony from both Maj. Gen. Miller and Col.  Pappas about the lack of personnel and resources necessary to conduct effective detention and interrogation operations at Abu Ghraib.   He also asked questions that would go to a lack of communication between Col. Pappas and then-Brigadier General Janis Karpinski , commander of the Military Police battalion at Abu Ghraib, the lack of a sound command structure, and the fact that changes in rules and regulations may not have been conveyed to lower ranks.   More will no doubt become clear Thursday, when, the defense indicated, it expects to conclude its case.

The Prosecution Rests

The prosecution moved a lot more swiftly than had been anticipated and finished its case today.  Dave Dishneau of the AP reports on some of the events from today.  

Word from Human Rights First attorney Hina Shamsi is that Maj. Gen. Geoffrey Miller is expected to testify today.  

Check in later for more reports on his testimony.  Miller would be the highest ranking officer to testify to date in a detainee abuse case and his account will hopefully shed light on what he recommended be authorized in interrogations at Abu Ghraib and what sort of directives/orders he received from officials in the Pentagon, including from Secretary Rumsfeld.      

Where were the officers? Where was the leadership?

There were no surprises in the opening statements at the Cardona court martial today. I admit I had half a hope that the prosecution would pick a different theme for this court martial than the "few bad apples on the Abu Ghraib night shift."  After all, it has been more than two years since the Abu Ghraib scandal broke, and there's now little question that abuses were not limited, but widespread and involved hundreds of  U.S. personnel: the preliminary results of a research project Human Rights First is doing with NYU's Center for Human Rights and Global Justice and Human Rights Watch found that over 600  U.S. military and civilian personnel have been implicated in credible allegations of abuse spread throughout Iraq (where the majority of alleged abuses took place outside Abu Ghraib), Afghanistan and at Guantanamo.

Today, though, prosecutor Maj. Matthew Miller's refrain was consistent: "This case is about military police, cops, who were trained better and knew better but decided to do otherwise"; Cardona's alleged release of his dog on a detainee who was suspected of an escape attempt was about "corrupt cops and jailhouse justice." Leadership failure got a nod: according to Maj. Miller, Col. Pappas will admit some failings – he already has, in the court-martial of Cardona's partner, Sgt. Michael Smith. Maj. Miller promised, though, that "you will hear no testimony from anyone that anyone in the chain of command knew what the corrupt cops were doing on the night shift." Instead, according to Maj. Miller, Cardona should be found guilty of the charges of which he is accused because he is a "cop" who "decided to abuse detainees as a part of the fun and games on the night shift."

Those hoping the defense might preview anything new to come from Major General Miller's possible testimony were in for another kind of disappointment. Cardona's civilian defense counsel, Harvey Volzer, repeated much of what is already in the public record: Maj. Gen. Miller brought a team from Guantanamo to assess, according to Volzer, "what was being done and should be done" at Abu Ghraib, and then wrote up a  report of his findings, which included a recommendation to "integrate" and "synchronize" the detention operations of military police to "set the conditions" for military interrogation (the latter quotes are from the report). Volzer added that Miller left "standard operating procedures" from Guantanamo behind when he left Abu Ghraib, but what those specifically were and how they relate to this case, we'll have to wait for the defense's case to see. The Kern-Fay-Jones Report tells at least one version of what Miller advised and what procedures he left behind, starting on page 58.

If I had to name the defense's theme, it would be "no responsibility because no system or authority." Volzer told the military jury a number of factors that should result in his client's acquittal for lack of responsibility: Cardona was part of an untrained military detention force; Abu Ghraib had multiple (with confusing lines of authority) groups of military and civilian intelligence personnel with different training and procedures; rules governing interrogation and detention were ambiguous and confusing; people guarding detainees were unqualified; Military Police command was weak; and, Abu Ghraib's detention and intelligence operations were understaffed.

The two themes echoed through the subsequent direct- and cross- examination of seven witnesses (another two witnesses, Army criminal investigation agents, were called to the witness stand only to identify or "authenticate" documents that were then admitted into evidence). Among them were names familiar from other Abu Ghraib courts martial, including Ivan Frederick and Sabrina Harman. The prosecution sought to elicit testimony during each witness' first (direct) examination that would tend to show Cardona as unreasonable, someone who disobeyed his superiors' orders despite the challenges of wartime and the constant possibility of attack, and a person willing to use his military working dog to threaten or hurt detainees for his own and others' amusement. On cross-examination, the defense would try to use the same witness to further its own arguments that confusion about standard operating procedures at Abu Ghraib, and specifically about detainee detention and interrogation policies and rules of engagement, was pervasive, that Cardona's actions may have been a reasonable response to the chaos, and that, in any event, Cardona was simply following what he perceived to be the orders of his (multiple) superiors. And as the defense and prosecution each tried to make their case through the witnesses, everyone in the courtroom saw multiple times the terrible photos of Sgt. Cardona and his partner Sgt. Smith using their dogs on detainees, and the bite wounds that resulted in two instances. Almost all of these photos are available at Salon's Abu Ghraib Files website.  (Salon obscures the victims' faces).

By the end of the day, honors were about even on both sides. The refrain that kept going through my head during both the prosecution's and defense's questions was from something one of the panel members said yesterday during " voir dire" (the process by which potential jury members are questioned to ascertain bias). Colonel Robertson, a potential panel member, was asked whether he knew any of the likely witnesses in the case. He answered that he knew of Col. Pappas. Colonel Robertson explained that he had been a student at the Army War College during the 2003-04 academic year and one of the case studies discussed during his time there was the strategic implications of the Abu Ghraib abuse scandal. Specifically, Colonel Robertson said, the class discussed the role of military police in safety and security operations and in relation to military intelligence operations. In that context, the class discussed both Col. Pappas and Gen. Sanchez. One of the lawyers then asked whether the class came to any conclusions and Colonel Robertson replied: "We discussed . . . where were the officers? Where was the leadership? No one came up with valid answers. No one knew."

Colonel Robertson is on the panel that will decide this case.
                

Why Should This Court Martial Care About Waterboarding?

"Lots of people in the world care if waterboarding happened at Guantanamo. Why should this court martial care?"

So asked the presiding Judge, Lieutenant Colonel Paul H. McConnell, of Harvey Volzer, Sergeant Cardona's civilian defense counsel, toward the end of the first day of the court-martial. Waterboarding (the alleged practice in which the detainee is tied to a board, with cellophane wrapped over his face  and water is poured over him making him feel like he is drowning) is not at issue in this trial of a military dog handler accused of using his dog to abuse detainees in Iraq. So how did it come up? Volzer and his counterpart, Maj. Christopher Graveline, the military prosecutor, were arguing over the documents to which Volzer could refer during his opening statement on Tuesday. The argument made clear the issues at the heart of this case:who authorized deviations from existing military law and doctrine on detainee detention and interrogation, how did those deviations (and authorization) migrate back and forth among  U.S. operations in Iraq, Afghanistan and Guantanamo, and what impact does any of this have on the innocence or guilt of Sgt. Cardona?

In the opening statement, each side will want to present to the jury (referred to as panel members in the military justice system) its own narrative about the case in such a way that when the jury listens to a witness or sees a piece of evidence, they evaluate it in light of that side's theory of the case. Based on the documents to which he wanted to refer, Volzer's theory will be that authorization for deviations came from the top levels of command, techniques authorized for one theatre of war or detention (in the case of Guantanamo) migrated to others, and confusion reigned at Abu Ghraib about what the rules were and to whom they applied.

Although we in the public couldn't see the specific documents the lawyers and the judge had in front of them, it was clear that among them were: a  February 7, 2002 White House memo (in which the President determined that al Qaeda detainees did not merit the protections of the Geneva Conventions and that detainees captured would be afforded humane treatment only "to the extent appropriate and consistent with military necessity"); a  November 27, 2002 Memo in which Secretary of Defense Rumsfeld authorized specific techniques including "using detainee's individual phobias (such as fear of dog) to induce stress," "stress positions," "hooding," 20-hour interrogations, removal of clothing, prolonged isolation, sensory deprivation, and "forced grooming" for use at Guantanamo; and the April 4, 2003 Pentagon "Working Group" Report and April 16, 2003 Secretary Rumsfeld Memorandum, which provide dubious legal support for and lay out recommended techniques that could be used on detainees in Guantanamo."  According to Volzer, witnesses would testify that each of these were among the documents brought by General Miller to Iraq and were part of the authorities U.S. officials, including Col. Pappas and General Sanchez, relied on to formulate interrogation rules for detainees in Iraq. In response, the prosecution argued against the documents' relevance to the issue of Sgt. Cardona's guilt or innocence, and would not concede that the documents had been relied on by U.S. officials in Iraq.

In the end, the Judge ruled that none of these three specific documents could be admitted for the purposes of the opening statement. According to the Judge, the two questions most important to him were: (1) was the document in Iraq and/or considered by U.S. personnel in Iraq; and (2) what would the witness(es) say about how the document was used there. He added that the defense could seek to reintroduce the documents later during the proceedings depending on the content of witness testimony. Underlying the Judge's decision was a concern about how the larger issues of authorization of interrogation techniques applied to the particular facts of Sgt. Cardona's case.At least part of the answer, I think, lies in the  Washington Post article to which my colleague Avi referred on Monday.But the article is not evidence and how much of the events it describes will be allowed into and discussed in Sgt. Cardon's court martial proceedings remains to be seen.

Most of the rest of the day was taken up with selection of the court martial panel members in a process called " voir dire", which is intended to ferret out potential jurors' biases.  The final panel has seven members, including four officers and three enlisted personnel.

Tuesday: opening statements, likely more arguments about what evidence the jury can see or hear, and maybe the first few witnesses in the prosecution's case.

Updated: 5/23/06 – 5:49pm EST