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 Three

January 19, 2006

Confusion. Surprises. Delays. Interruptions. Objections. Threats of appeal. One slip of the tongue, which officially confirmed that CIA operatives had been active at the “Blacksmith Hotel” in November 2003. And another slip of the tongue that put the Fort Carson murder trial at risk of a mistrial.

All of these, and more, were on full display Wednesday, the third day of the murder trial of Chief Warrant Officer Lewis Welshofer at Fort Carson, Colorado.

At one point during the afternoon, two separate developments threatened to slow down or even halt the court martial, which already had been making excruciatingly slow progress.
First, defense attorney Frank Spinner, moved for a mistrial, based on inadmissible comments made by a prosecution witness.

At the same time (we later came to find out), another lawyer named Steven Zansberg, who until Tuesday night had not appeared in the proceeding, was exploring the possibility of filing an immediate appeal at the Army Court of Military Appeals in Washington, D.C. The possibility of this action grew out of the dramatic end of Tuesday’s court session. On Tuesday night, Judge Mark Toole declared a witness would testify in a closed session, without offering any information about the nature of what was to be discussed behind closed doors.

Wednesday’s proceedings began behind closed doors, as well; in this case the judge’s chambers, where judge, prosecution, defense, and Zansberg were likely discussing the oral argument that the newcomer was about to make in open court.

At eleven am, Judge Toole appeared and explained that the events of Tuesday evening had changed Wednesday’s agenda. The chain of events had been precipitated by a reporter for the Colorado Springs Gazette, Tom Roeter, who had jumped to his feet and objected to the judge’s announcement of a closed session. Although Toole immediately said he would not answer questions from spectators, Roeter called out a case, U.S. v. Hershey, which, the reporter said, requires that judges provide some information about matters to be discussed in closed session. The courtroom was cleared, Roeter contacted his attorney, and now, on Wednesday morning, it was time for Act II of the drama.

Judge Toole stole Scene I by expressing regret at the way he had handled the previous night’s commotion. He conceded that U.S. v. Hershey was indeed relevant, and because of that, he was permitting oral arguments by Zansberg, whom he identified as the lawyer for the Denver Post.

Zansberg began his comments by pointing out that he represented not only the Denver Post, but also the Colorado Springs Gazette and the Associated Press. The judge then asked Zansberg to avoid mentioning any classified information, if he knew any.

Zansberg replied: “I will avoid that, except for material already in the public domain.” This point proved to be one of the central themes of Zansberg’s oral argument, as he implored the judge to consider how much classified material had found its way into the public domain. He asked Toole to reconsider his position on closed door hearings and urged the judge to release several batches of documents about interrogation techniques employed at American-run detention facilities. Some of this material, Zansberg pointed out, had entered the public domain.

The legal basis of the argument was a case called U.S. v. Grunden which, Zansberg said, states that the exclusion of classified material should be cautiously exercised, and that the classification review process should proceed on a paragraph to paragraph, or line by line analysis of the documents in question. In what the lawyers said was the language of the Grunden decision, the exercise should be done with a “scalpel,” not an “ax.”

Moving from documents to witnesses, Zansberg urged the judge to identify two unnamed witnesses who are scheduled to testify. And he cited a recent military trial in which an undercover agent gave open testimony from behind a screen. Zansberg urged Toole to consider employing the same technique.

The lawyer concluded by saying that if the judge did not rule in his favor, then at least he should issue a stay of several hours duration, providing Zansberg with an opportunity to have other lawyers, standing by in Washington, file an appeal in the Army Court of Appeals.

Judge Toole retired to formulate his decision. He returned at 2:20pm and, in effect, gave Zansberg half-a-loaf. He agreed to use the screen technique for a witness previously scheduled to testify in closed session. Another unnamed witness, however, would testify fully in closed session, as planned. Yet another, originally scheduled to testify in closed session, would now do so in open session, with no screen at all.

As far as the documents were concerned, Toole insisted that they had been marked properly as classified or unclassified and that the process did not have to be repeated. However, he stopped short of insisting they had to remain classified. Instead, he contended that a decision to release the documents was not his to make. He suggested that Public Information Officers should attempt to determine who the proper decision-maker might be. (By day’s end, no appeal had been filed in Washington.)

What happened next was something of a novelty for the day: a witness actually took the stand. Sgt.1st Class Gerold Pratt described some of Welshofer’s actions he witnessed at the Blacksmith Hotel in November 2003, including Welshofer body slamming a detainee, and applying the sleeping bag technique three times.

Pratt also described a dramatic incident that happened on the day before General Mowhoush died. The youngest of the general’s four detained sons had been brought to Blacksmith to see his father. Pratt said Welshofer approached Mowhoush, who was in very bad shape from the recent beatings he had received, and told the general he had fifteen seconds to get up and move, if he wanted to see his son. Mowhoush, Pratt said, could only groan in pain. Pratt then helped Mowhoush to get up, and discovered his feet were too swollen to put on his shoes.

Pratt says he managed to escort Mowhoush past the several hundred other detainees who were watching the scene unfold, and walk him about 200 meters, which Pratt’s estimated took fifteen or twenty minutes to accomplish. Pratt says he overheard Welshofer whisper that if he heard Mowhoush tell his son how he was being treated, Welshofer would end the reunion immediately. In the end, father and son did have a brief visit.

It was another witness, Special Agent William Hughes, a military investigator, who threw the entire trial into jeopardy. Hughes had taken part in the investigation of Mowhoush’s death. He described visiting the Blacksmith Hotel, being escorted on a tour by Welshofer, and learning that Welshofer had been interrogating Mowhoush when he died. Hughes then testified that he had asked Welshofer about the interrogation, and that Welshofer had replied that he could not answer because his attorney had instructed him not to.

This admission by Welshofer – that he had sought legal advice soon after Mowhoush’s death – raised the issue of his Fifth Amendment protections against self-incrimination.

An alarmed look immediately crossed Judge Toole’s face, and simultaneously defense attorney Spinner rose to protest. Spinner asked for a mistrial, reciting previous occurrences of this sort that had produced mistrials. After listening to arguments from the opposing lawyers, Judge Toole called a recess and, yet again, left the courtroom to consider his decision.

While he pondered, spectators of all types – reporters, soldiers, observers – mused about the situation that had arisen. For many months, this case had generated considerable interest because it involved one of the most troubling issues of the day: the abuse and torture of detainees by their American captors. It was a case that had the potential to shed light on the role of CIA, Special Forces, and U.S.- trained Iraqi paramilitary personnel in the treatment of enemy captives. And it was a case that could have an impact on the balance between the military’s desire to maintain confidentiality and the press’s efforts to pierce it. The defendant was a U.S. Army Chief Warrant Officer and the victim was an Iraqi Army Major General.

And now, all these people, issues, and dynamics were on hold, hostage to a Fifth Amendment problem caused by a witness’ single sentence – a sentence that the judge, prosecution and defense all agreed he should not have spoken. In the end, Judge Toole ruled that although the error was of “a constitutional magnitude,” he would not declare a mistrial. Instead, he instructed the jurors that a mistake had been made and they were to disregard all the testimony of the witness. Of course, the testimony was stricken from the record.

The late afternoon wore on; two more witnesses testified in open court, followed by a witness in closed session. The spectators, of course, filed out into the darkness one more time, but one more theatrical twist awaited them when they returned to the courtroom after the closed session. A floor-to-ceiling, Army-green tarpaulin stretched about twenty feet across the room, just in front of the spectator seats, then made a 90-degree turn and traveled about another eight feet. The spectators were separated from all other court martial participants. Thus encapsulated, we listened to ten or fifteen minutes of testimony from one of the unnamed witnesses, in which he testified that Welshofer had told him that “we break the rules every day.” Defense attorney Spinner asked whether the witness had reported this to anyone else at the CIA – and immediately apologized to the court for this slip, but the genii was out of the bottle. For the first time, an official record of a court martial will show that a CIA agent was involved in the circumstances surrounding the death of General Mowhoush.

Then, finally, the long, strange day was over. After the judge announced that the trial would resume at 9 a.m., Thursday, another disembodied voice called out: “All rise.” Obediently, we rose as the jurors filed out of the room – invisible to us, just as we were invisible to them, on opposite sides of the curtain that divided us.

—Marc Kusnetz