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 Four

January 20, 2006

In pacing, in form, and in substance, the events of day four transformed the court martial of Chief Warrant Officer Lewis Welshofer. Previous sessions had primarily focused on legal arguments and procedural skirmishes and were marked by frequent delays that gave the proceedings a stop-and-go tempo. In contrast, Thursday’s session focused on the central facts of the case, the testimony of key witnesses, including Welshofer himself, and the tempo was simply go, go, go.

A couple of government officials have been observing the trial all week. One of them, an advisor to the State Department on international justice issues named David Hodgkinson, moved from the passive observer role to an active one when the prosecution called him as an expert witness. Hodgkinson was identified as a specialist in Geneva Convention issues and explained that one of the central goals of the treaties is to regulate the treatment, and minimize the mistreatment, of all prisoners in the context of war.

A significant reason for the United States to comply with the Geneva Conventions, Hodgkinson pointed out, is the principle of reciprocity: if an army treats its prisoners well, then an enemy army is more likely to follow suit and treat its prisoners well, too.

Moving from the general to the specific, prosecutor Tiernan Dolan asked if Major General Abed Hamed Mowhoush, whose death resulted in murder charges against Welshofer, was entitled to Geneva protections. Yes, replied Hodgkinson, he was entitled to protection against not only torture, but also physical and mental coercion.

Getting more specific still, Dolan asked about techniques to induce claustrophobia – would they be permissible? Hodgkinson said, “that’s a close call.” What about putting prisoners head-first into a sleeping bag, and wrapping it with cord? “That would clearly cross the line,” Hodgkinson answered, adding that “it would pass from a vague area of permissibility into a clear area of impermissibility.”

Defense attorney Frank Spinner began his cross-examination by asking if Hodgkinson, who had worked in the Green Zone in Baghdad, if he ever offered this guidance to the 3rd Armored Cavalry Regiment, Welshofer’s unit, in the late summer and early autumn of 2003. Hodgkinson responded that he did not.

Spinner then turned to a memorandum dated September 10th, 2003, written under the name of General Ricardo Sanchez, then the commander of all ground forces in Iraq. The memo outlined some permissible interrogation techniques but, Spinner said, also pointed out that there were unclear areas about what is and isn’t permissible.

Hodgkinson testified that such vagueness could be a problem for soldiers on the ground who were trying to figure out what techniques they could legitimately use to interrogate Iraqi prisoners. In response to a question from Spinner, Hodgkinson agreed that the memo’s reference to the use of techniques in combination could increase the possibility of confusion.

Spinner then asked about possible confusion within the Bush Administration about these very issues. Prosecutor Dolan objected, claiming irrelevance and Judge Mark Toole agreed with him. Instantly, Spinner insisted that it was indeed relevant, and that he was asking an expert witness – Hodgkinson – to offer his expertise on the confusion inherent in these issues.

Judge Toole asked, “What is the relevance of disputes within the Administration?” Spinner exclaimed, “I have documents that reveal arguments within the Administration about what is and isn’t lawful!”

In that instant, the dual nature of what this trial is about came barreling into the open. On the one hand, before the jury, was the specific question of Welshofer’s guilt or innocence, along with the permissibility or impermissibility of the techniques he had employed. On the other hand, also before the jury, was a broader question: did confusion, disagreement and mixed messages from the top of the chain of command at the Pentagon explain or excuse Welshofer’s conduct?

Judge Toole ordered the jury out of the room, in order to sort out how to proceed. Dolan repeated his claim that disputes within the Administration were irrelevant. Toole, generally soft-spoken, said with considerable intensity, “Lawyers disagree all the time! It’s happening right now!”

Spinner, matching the judge’s intensity, responded, “I can’t imagine anything more relevant (emphasizing the word “more”)! He paused, agitated, then looked at the judge and said, “It sounds to me like you’re trying to protect this Administration!”

Toole, staring back at Spinner, returned to his customary mild voice and responded, “I appreciate the zealousness of your advocacy, but I’m just trying to do what’s fair.” Spinner, his own voice returning to a softer register, said, “This is a very focused cross- examination, not a broadside leveled at the Administration.”

Judge Toole, clearly anxious to get the trial back into gear, instructed Spinner to resume questioning Hodgkinson, who had been sitting quietly. Toole explained that he wanted to see where Spinner was going with his line of questioning. Spinner obeyed, and asked the witness (who, as it happens, had previously worked for Undersecretary of Defense Douglas Feith) about a Defense Department Working Group report of April, 2003, in which the lawfulness of slapping a prisoner was discussed. Hodgkinson said he was unaware of this discussion.

Toole, apparently satisfied with this test run, ordered the jurors back into the courtroom. He informed them that he had reversed his decision and was now overruling the prosecution’s objection. The judge then gave the jurors a Solomonic, split-the-baby instruction: they could consider this testimony with regard to the opinion of the witness, but they could not consider the testimony in regard to the actual lawfulness of slapping techniques.

Spinner asked and Hodgkinson answered, but as it turned out, the only question from the jury (military jurors are permitted to write out questions, which are then asked aloud by the judge) had nothing to do with slapping. Instead, the question was about the sleeping bag technique: Did the bag alone cross the line of permissibility? What about cord? What about placing a hand over the mouth of a detainee inside a sleeping bag? Hodgkinson answered that there is no specific point, and added, “The general standard we use is – if a given technique were used on an American in enemy custody, would we consider that acceptable?”

And with that, the witness was told to step down.

In a subsequent recess, I sought out retired General David Irvine, who taught Army interrogation techniques for 18 years, and who now works with Human Rights First on abuse and torture issues. I asked him his thoughts concerning confusion and arguments within the Bush Administration about techniques that could lawfully be used on prisoners.

Irvine said, “The Administration didn’t want to hear from anyone who disagreed with this testosterone-fueled vision of what they wanted to do.” He continued, “They cut out of those working groups anyone who had an opposing view. So memos were squelched, because the Administration didn’t want anyone to know.”

From Expert Witness to Eye-Witness

The prosecution next called Specialist Jerry Loper, who was one of four men originally charged with murder in the Mowhoush case. He later reached an agreement with the prosecutors in which the murder charge was dropped.

Dolan asked him about events on November 24th at the Blacksmith Hotel. Loper recalled being outside a room in which it sounded like Mowhoush was being beaten. “There were loud screams,” he said, adding, “You can learn the difference between the screams of an Iraqi and an American.” Loper wound up as one of the escorts assigned to bring Mowhoush back to where he slept. He testified that it took five people to take Mowhoush there.

Dolan then asked about what happened on November 26th, the day Mowhoush died. Loper, who had been in the interrogation room with Welshofer, described the sequence of events: he and Welshofer made him Mowhoush, already inside the sleeping bag, lie down; Welshofer sat on his chest; Welshofer started asking questions, like ‘are you part of a regime?’; Mowhoush said ‘I don’t know’; Welshofer put his hand over Mowhoush’s mouth about two or three times; Welshofer asked more questions, but the general wasn’t answering; Welshofer stood up and looked down; after fifteen seconds Mowhoush took a deep gasp, “almost like when you were a kid and you try to beat your friends by holding your breath longer than they can. There was a huge gasp like he was coming up for air.”

Loper then quoted Welshofer as having said, “Thank God. I thought the general stopped breathing.” Dolan asked what happened next, and Loper said that they turned Mowhoush over onto his stomach, and Welshofer resumed asking questions. Then, Loper added, “the general started to clinch his legs. He looked like he was almost being electrocuted.”

Defense attorney Spinner’s cross-examination was brief and focused on getting from Loper the testimony that Loper had been kept on active duty so he could testify in this case, and that Loper had originally been charged with murder but no longer was.

The prosecution then called its final witness, Major Dr. Michael Smith, who performed an autopy on Mowhoush. Smith testified that he found the cause of death to be asphyxia, and the manner of death was homicide. Dolan then showed the witness – and everyone else in the courtroom – a series of gruesome photos of Mowhoush’s body -- front, back, and sides. The photos showed that Mowhoush had been covered with purple contusions, some small, some ten, twelve, thirteen inches long. One arm was completely purple from the wrist to near the shoulder. The autopsy lists at least 47 contusions, in all. It also lists seven broken ribs (although in testimony, Smith said there were five broken ribs.)

But, Smith testified, these traumas were unlikely to have caused Mowhoush’s death – Mowhoush might have survived them. Smith added that Mowhoush had heart disease, but that Smith didn’t think Mowhoush died of it.

The Defense’s Expert

With more than forty years of experience in the public and private sectors, Cyril Wecht has a long curriculum vitae, and Spinner made sure the jurors heard a great deal about it. After listing a host of affiliations, Wecht said he had performed about 15-thousand autopsies, and had reviewed tens of thousands of others. He has testified as an expert witness in thirty states, he said, and estimated that he has appeared in about one thousand trials. He added that, overall, he has been a prosecution witness seventy-five percent of the time. He made clear that the Army, not the defense, was paying his fee.

During this process of establishing an expert witness’s qualifications and credentials -- called voir dire – the prosecutor was able to ask his own questions which, as expected, focused on Wecht’s credibility. Dolan asked about Wecht’s appearance on a Fox television network program about aliens, in which Wecht had examined some unidentifiable creature and announced, “This is not like any human I have ever seen.” Dolan asked, “Do you think it was an alien?” Wecht answered, “No, but I still think it was like no human I had ever seen.” Voir dire ended soon after this.

Wecht, with Spinner guiding him, propounded his theory about Mowhoush’s death. Essentially, Wecht testified that Mowhoush died of heart disease, and that a related factor, the stressful environment in which Mowhoush spent the last sixteen days of his life, may have contributed to the cause.

After Wecht had explained his conclusions, Spinner asked how Wecht and Smith, both well-trained, could reach such different conclusions. Wecht, mostly bald, responded, “I wish I had a hair on my head for every time doctors have disagreed. The real answer is this: medicine is NOT an absolute science. Doctors sometimes lose sight of this.”

Welshofer Testifies

Welshofer deployed to Iraq in March 2003, and Spinner quickly tried to establish his level of preparedness for what lay ahead. “Did you get specific training for Iraq as conditions existed then?” “No,” Welshofer replied.

Welshofer testified that he first encountered General Mowhoush on November 10th, the day Mowhoush was taken into custody. Welshofer interrogated him that day, he said, but only asked the Iraqi direct questions.

November 17th was the next interrogation, and then, Welshofer testified, he employed what he called “pride and ego down,” a phrase signifying techniques that would cause a loss of self-respect in the detainee. He also forced Mowhoush to his knees and slapped him, Welshofer said, and the episode could be seen by many other detainees. Mowhoush bowed his head, and so did the other detainees because, Welshofer asserted, they knew Mowhoush was important and they could see that Welshofer was in control.

On November 25th, the day before the general died, Welshofer employed what he called “the love of family technique.” He said that he had Mowhoush’s youngest son brought to the Blacksmith Hotel, figuring that a visit could make the general more cooperative. Welshofer testified that he instructed Mowhoush not to say anything to his son about his guilt or innocence. But, Welshofer says, the general did just that, whereupon Welshofer took away the son. The reunion lasted five minutes, Welshofer said.

The next day, Welshofer testified, he resorted to the sleeping bag because “I had run out of techniques.” At one point, he said, he placed his hand over Mowhoush’s mouth. Spinner asked why. Because, Welshofer responded, he had a rule: he did not permit any detainees to say “Wallah.” “He said it,” Welshofer testified, “so I put my hand on his mouth.”

Spinner asked if the general became unresponsive at any point while he was in the bag, adding that there had been earlier testimony describing that development. Welshofer responded, “I have no recollection of that.”

Eventually, when Welshofer peeled back the sleeping bag from the general’s head, Welshofer testified that he thought Mowhoush had a smile on his face and “I thought he was messing with me.” So Welshofer poured water on the general’s face. As Welshofer described it, some seconds passed without any reaction from Mowhoush to the water on his face. Welshofer, realizing that something was wrong, called for medical help and began applying chest compressions. Mowhoush never regained consciousness.

In cross-examination, in response to a question about the Army Field Manual on Intelligence Interrogation, the Army’s main source of guidance on interrogation techniques, Welshofer testified: “I think it’s outdated. It does not apply to Iraq. It’s geared to the Cold War, to an industrial-based and Christian-based society.”

—Marc Kusnetz