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 Two

January 18, 2006

Because the permanent courthouse at Fort Carson was condemned last fall due to a leaky roof, the court martial of Chief Warrant Officer Lewis Welshofer is being held nearby in a hastily-assembled and temporary trailer with no windows, off-white ceiling- and wall tiles, beige office carpeting, and overhead fluorescent lighting. Except for an American flag in the front of the room and a clock on the back wall, there are no adornments.

That clock read 9:27 a.m. when Judge Mark Toole entered and began the proceedings, which, like yesterday, were at first taken up with procedural issues while the four-man, two-woman jury waited outside.

It was more than a half-hour later, jurors then in their seats, that opening statements got underway. The first words from Captain Elena Matt, the lead prosecutor, invoked stirring imagery, rather than technical requirements of law. “This case is about an American soldier,” she said. When you think about that, Matt continued, “you think of standards, of the moral high ground.” But, the prosecutor added, unfortunately Lewis Welshofer abandoned those standards and relinquished the moral high ground.

Then Capt. Matt turned to the facts and details of Welshofer’s involvement in the detention, interrogation, and mistreatment of Major General Abed Hamed Mowhoush, which culminated in the general’s death on November 26th, 2003. Welshofer is charged with murder and dereliction of duty in the Mowhoush case and is also charged with assaulting another Iraqi detainee. (The charge sheets were distributed yesterday. In response to arguments byWelshofer’s lawyer, the Judge instructed that the charge that Welshofer “should have known” of his duty to safeguard Mowhoush should be struck, leaving only the charging requirement that Welshofer “knew” his duty.)

Mowhoush was a prisoner in U.S. custody for 16 days, first at Tiger Forward Operating Base (usually called Tiger FOB, due to the military’s fondness for acronyms) and then at a facility called “The Blacksmith Hotel” in western Al Anbar province, near the Syrian border. Capt. Matt asked the jurors to concentrate particularly on the events of the final three days.

On the 26th, she recounted, Welshofer forced Mowhoush into a sleeping bag head first, put him on the floor, straddled and sat on Mowhoush’s chest, all the while questioning him in English. (Mowhoush spoke proficient English.) Welshofer deemed Mowhoush’s answers inadequate. After a while, Matt continued, the general failed to respond, and there was silence for about fifteen or twenty seconds. Then, Matt said, Mowhoush gasped for air, which prompted Welshofer to say: “Thank God, I thought he died.”

Whereupon, the prosecutor noted, Welshofer immediately launched another round of questioning. This, too, eventually led to a silence, but this time Mowhoush did not gasp; instead, he clenched his body and did not make a sound. He was unconscious. Despite CPR techniques applied by Welshofer, and the arrival of a doctor three or four minutes later, Mowhoush could not be resuscitated.

In what seemed like a portrayal of a pattern of behavior by Welshofer, Matt had also described what had happened a day earlier, November 25th. Then, too, Welshofer interrogated Mowhoush, this time on the roof of the facility. Matt said that Welshofer “immobilized” the general, poured water on his face, and hit him repeatedly on the funny bone of his arm.

On the day before that, Matt added, Welshofer had also interrogated Mowhoush and, frustrated by the responses to his questions, called together ten people who proceeded to beat the general. At the end of that beating, Matt said, Mowhoush was unable to take more than three steps without assistance. Matt described the ten people as both U.S. Army and non- U.S. Army. In so doing, the prosecutor made the trial’s first reference to OGA personnel. The designation stands for Other Government Agencies, and refers to CIA or other undercover operatives.

To those familiar with the case, the presence of OGA personnel does not come as a surprise. But one of the most intriguing questions now is the extent to which the role and actions of these operatives will be explored in open court.

It isn’t just reporters and human rights organizations that are interested in this issue: seated among us is a young woman who other reporters told me had previously had been seen at pre-trial proceedings in the case. She, unlike the others, chats with nobody, does not identify herself, and is widely assumed among reporters to be from the CIA.

I approached her Tuesday afternoon and casually asked where she was from. She paused, then said “uh” and paused again. Then: “I’m not from here.” Another pause, then, with a shrug and a half-smile: “I’m just an observer.”

She regularly sits next to a man the judge has identified both by function and name: court security officer Carmine Nacarelli. It is Mr. Nacarelli’s job to brief the jurors on how the court will handle classified information. For example, he showed the jury special note pads that will be used during closed sessions. Nacarelli is responsible for handing out these pads and then, at the end of a closed session, to recover them for storage in a secure place.

The Defense’s Opening Argument

Captain Matt finished her opening statement with a return to the language she had employed at the beginning. “Hold Welshofer to his legal and moral obligation to maintain the moral high ground,” she implored the jury. “Find him guilty of all charges.”

Then it was defense attorney Frank Spinner’s turn. He began with a carefully chosen phrase of his own: “At the heart of this case is the question of a heart,” he stated, and then asked a question that he immediately answered: “Did Mowhoush die of suffocation, or did he die of the stress of confinement, with a weak heart? We’ll argue that he died of a weak heart, not from any of Welshofer’s actions in this case.”

Spinner enumerated what the defense would concede: that there was a sleeping bag, that Mowhoush died inside it, that Welshofer was interrogating the general when it happened. But, Spinner asked rhetorically, did Welshofer intend to kill – to murder – Mowhoush?

Immediately, the prosecution objected, claiming that Spinner was improperly talking about the theory of the crime, specifically the “intent to kill.” At the prosecutor’s insistence, Judge Toole explained to the jurors that he alone would instruct them on the issues surrounding the principle of intent to kill.

Through most of this brief exchange, Spinner sipped from a bottle of water, and then, after the judge had finished his comments, returned to the issue he began with. He told the jury he would call an expert witness named Cyril Wecht. Wecht is a nationally-known forensic pathologist who has testified in many cases over a period spanning decades.

Wecht, Spinner said, will testify that the evidentiary findings in the autopsy point to the cause of death as hypertensive heart disease and fatal arrhythmia. Spinner asserted that Mowhoush weighed at least 250 pounds and had an enlarged heart.

The defense attorney also asked the jurors to keep in mind the question of credibility. He pointed out that a number of prosecution witnesses had been in potential or actual legal jeopardy themselves, but had made deals with the prosecution which provided reduced charges or immunity from any charges.

Spinner named Welshofer’s immediate supervisor, Major Jessica Voss, head of the 66th Military Intelligence Unit, as one such immunized witness. Although she will take the stand for the prosecution, Spinner noted that Voss will testify that she, like Welshofer, believed that the sleeping bag technique was authorized. Her testimony, Spinner stated, would show that Welshofer did not go off on his own, “being a cowboy.” Spinner did not, at this point, expand on another intriguing question in this trial: the role of Major Voss and others higher up in the chain of command in the events that unfolded at Tiger FOB and the Blacksmith Hotel.

Spinner did, however, refer to the events of November 24th, the day Welshofer allegedly brought in ten people who beat Mowhoush. Spinner said that his client was not involved in this beating and that it was conducted by “civilian interrogators.” With that characterization, the defense attorney made the trial’s second reference to OGA involvement in the case of General Mowhoush.

In a break after the completion of opening arguments, I sought the opinion of an observer at the trial, retired General David Irvine, who spent almost two decades training Army interrogators, and who has worked with Human Rights First on abuse and torture issues. Reflecting on a morning filled with references to the moral high ground, to the question of what was authorized and what was not, to the role of the chain of command, to the possible involvement of OGA personnel, General Irvine exclaimed: “If ever there were a reason for the McCain Amendment, this is it.” The McCain Amendment was signed into law by President Bush on December 30, 2005.

The Witnesses

The rest of Tuesday was taken up by the testimony of five prosecution witnesses. The first was Chief Warrant Officer Jefferson Williams, who, until he cut a deal last week, faced the same murder and dereliction of duty charges now faced alone by Lewis Welshofer.

Williams said he saw Mowhoush on the day he appeared at Tiger FOB, and added that he had already known who the general was. Mowhoush, Williams testified, was among the top 20 Iraqis sought by U.S. forces in the region. This testimony echoed a comment made by Captain Matt in her opening statement, when she referred to Mowhoush as a “high-value” target who was suspected of being deeply involved in the insurgency. She also said that several days before Mowhoush showed up at Tiger FOB, he had presented himself at the headquarters of the 82nd Airborne. There, Matt continued, Mowhoush said he was looking for information about his four sons, who had been detained days earlier.

Once again, an intriguing question had been raised but not pursued. If Mowhoush was such a well-known and high value target, why wasn’t he detained right there and then, at the 82nd Airborne Headquarters? Why would he have been let go, allowing him to travel to the Tiger FOB facility in search of his sons, and be taken into custody only then?

Although nobody in the courtroom dwelled on this question, some clarification comes from two of General Mowhoush’s four sons, with whom Human Rights First has been in contact since last summer. They told Human Rights First that, after they were released (months after the death of the general), they reconstructed their father’s movements in the days before his capture. The sons insist that Mowhoush, accompanied by a tribal elder, traveled to a U.S. military facility in Ramadi to seek information about his sons.

According to one of the sons, their father was interrogated at the U.S. facility for hours and then released. The son says Mowhoush received from the Americans a green card or document that allowed him to leave the facility and gave him permission to recover his detained sons.

Whatever the case, the witness on the stand, Jefferson Williams, had other things to talk about. He described witnessing Welshofer perform the interrogation techniques that Matt had described earlier. He said he had been present for about five minutes during the November 24th incident, where about ten individuals – not in the military, he said – interrogated Mowhoush and “beat the crap” out of him. This was another reference to OGA personnel.

The next witness was the senior interrogator for the 3rd Armored Cavalry Regiment, Justin Lamb, who had worked under Welshofer and took over his position as chief interrogator after Mowhoush’s death. Lamb confirmed that there was a copy of the Army’s Field Manual on Interrogation Intelligence (FM 34-52) at the detention facility, and that he and Welshofer referred to it frequently. Lamb testified that he had discussed the Field Manual with Welshofer, who knew the manual well.

Major Voss, Welshofer’s boss, was the third witness. She confirmed that she had approved Welshofer’s use of the sleeping bag technique, but she testified that she would not have done so had she known it would involve sitting on a prisoner’s chest, beating the prisoner, or any other aggressive tactic. She also testified that the sleeping bag technique had been used in the interrogation of other detainees.

The fourth witness was the doctor who was called to the interrogation room after Mowhoush became unconscious. Major Ann Rossignol testified that she found the general on the floor, with Welshofer applying chest compressions. But it was in vain: Major Rossignol testified that she never got a pulse during the approximately forty minutes she attempted resuscitation.

As the afternoon turned to early evening, Judge Toole announced that the fifth witness would give bifurcated testimony; that is, one part in open court and another part in closed session. The witness was Special Agent Curtis Ryan, an Army criminal investigator assigned to the Mowhoush case. Ryan’s open court testimony was a straightforward account of his efforts to examine the scene of the death and to retrieve evidence.

By this time, the attention of many of the spectators had wandered. But all that changed suddenly, when Judge Toole announced that it was time to go into closed session. A reporter for the Colorado Springs Gazette, Tom Roeter, jumped to his feet and objected. The judge immediately said he would not entertain any questions from spectators. Roeter persisted, and called out that his objection was based on a case known as U.S. v. Hershey, which, he insisted, required the judge to outline the areas of discussion in a closed session. But by this time, several soldiers had approached Roeter and insisted he leave the room immediately.

Moments later, Roeter was on his cellphone, speaking to his attorney. Reporters and soldiers milled around, some chatting idly, wondering what Wednesday would bring. All this unfolded in a dark parking lot, and continued until people began to drift toward their cars on a mild January evening at Fort Carson, Colorado.

—Marc Kusnetz