Torture on Trial - HRF Observes Court Martial of Army Officer Accused in Death of Iraqi Major General

Human Rights First will observe the Fort Carson, Colorado, trial of Chief Warrant Officer Lewis Welshofer, charged with the murder of Iraqi Major General Abed Hamed Mowhoush, who died after being forced inside a sleeping bag during interrogation.

Marc Kusnetz is a consultant to Human Rights First and a freelance journalist. He was a producer at NBC News for twenty-six years.

David Danzig is the manager of Human Rights First's "End Torture Now" campaign.

Day One

January 17, 2006

After three months of delays, the case of Chief Warrant Officer Lewis Welshofer, charged with murder and dereliction of duty in the death of Iraqi Major General Abed Hamed Mowhoush, finally entered a courtroom Monday. But there was a day-long detour before the trial got underway.

The day was taken up by an unexpected defense motion, filed over the weekend, to dismiss the case, based on a military principle known as “unlawful command influence.” With no jurors present, defense attorney Frank Spinner introduced a witness who otherwise has nothing to do with the case, but who testified that he overheard a conversation which suggested unlawful command influence on the part of the commanding officer of Fort Carson, Major General Robert W. Mixon, Jr.

The witness, Major Robert Short, told the court that the conversation took place in a crowded clubhouse after bad weather had halted a Fort Carson golf tournament in November, 2005. Short said he overheard one colonel tell another that Mixon was unhappy with the leniency of the outcomes of some recent courts-martial, and that jurors who were “bleeding heart liberals” had contributed to the problem.

Short said the officer, Colonel David Saffold, went on to say that he had learned he was in the jury pool for the Welshofer case, and that other officers who had not been deployed to Iraq (and, presumably, therefore, would not be as likely to sympathize with the accused) were also in the panel of possible jurors. This, Short quoted Saffold as saying, would please General Mixon because he’d know the jurors “would do the right thing.”

When the prosecutor, Major Tiernan Dolan, called Colonel Saffold to the stand, a very different story unfolded. Saffold did not deny that a conversation had taken place, but he said that Short’s version was based on a misunderstanding: in talking about jurors and a court martial, Saffold said he had not been referring to the upcoming Welshofer trial, but to another court martial that had been completed several months earlier.

The general confusion was augmented by several other witnesses who, respectively, supported either Short’s or Saffold’s version of the clubhouse conversation. This went on for hours, followed by statements from the opposing attorneys. Defense counsel Spinner argued that if sworn testimony suggests even the appearance of unlawful command influence, then “it goes to the very heart of the military justice system.” For his part, Major Dolan argued: “This isn’t about the appearance of unlawful command authority. It’s about its actuality – it either exists or it doesn’t.”

After an extended recess, Judge Mark Toole made his ruling: he denied the motion to dismiss based in part on his finding that there was evidence to support Safford’s account, that the conversation was about another court martial. The argument over the specific principle of illegal command influence had been put to rest, at least temporarily.

It will now be replaced by another argument about a different kind of command influence. At the heart of Welshofer’s defense is likely to be the claim that his actions in November 2003 were authorized by his superior officers. In effect, Welshofer will be arguing that the influence his commanders exerted over his actions should exonerate him.

The trial resumes Tuesday.

—Marc Kusnetz