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January 26, 2006

Case Closed?

By Marc Kusnetz

Late Monday, January 23, the jury in the murder and dereliction of duty trial of Chief Warrant Officer Lewis Welshofer imposed three punishments on the defendant.

First, he would receive a letter of reprimand.
Second, he would be restricted to his home, his place of worship, or his base, Fort Carson, for two months.
Third, the sum of $1,500 would be deducted from his monthly pay check, for a period of four months, meaning that he was being fined $6,000.

No jail sentence whatsoever was imposed.

According to press reports, at that moment, other soldiers who had congregated in the courtroom burst into applause. Welshofer hugged his wife.

The case, according to Defense attorney Frank Spinner, will now be reviewed by the commander of Fort Carson, Major General Robert Mixon. The general, according to Spinner, has two options: he can decide to further reduce the penalties imposed by the jury, or, alternatively, he can throw out the verdict altogether. General Mixon, Spinner said, does not have the option of increasing the severity of the sentence.

Monday’s dramatic developments followed an off-day at the trial, which, in turn, had come after Saturday’s rush of events: closing arguments, the judge’s instructions to the jurors, six hours of jury deliberations, and then, just moments shy of 11pm, the verdict.

More than twelve hours earlier, prosecutor Major Tiernan Dolan had begun his closing argument to the jury, asking that Chief Warrant Officer Lewis Welshofer be convicted of murder and willful dereliction of duty in the death of Iraqi Major General Abed Hamed Mowhoush on November 26th, 2003. Death came on the 16th day of Mowhoush’s captivity at a U.S.-run detainee facility called the “Blacksmith Hotel,” in western Iraq near the Syrian border.

The death occurred during an interrogation session conducted by Welshofer, who was charged with forcing Mowhoush head-first into a sleeping bag and binding him with thick electrical cord. Welshofer was also accused of squatting over the general, sitting on his chest, and pouring water on his face. Welshofer also placed his hand over the detainee’s mouth several times, in order to prevent Mowhoush – according to Welshofer’s own testimony – from invoking Allah, the Islamic name for God. Mowhoush died in the sleeping bag.

This interrogation had been preceded, on previous days, by multiple beatings and abuse, both by Welshofer and by others, including non-military Americans – identified, because of a slip-of-the-tongue by the defense attorney -- as CIA. In addition, there was testimony from several witnesses that Iraqi personnel, under the control of U.S. Army officers, had participated in the beatings of Mowhoush. (Welshofer was also charged with assault in connection with another Iraqi detainee.)

Prosecution Closing Statement

All this had emerged during a week of testimony, and led to prosecutor Dolan’s opening theme when he stood before the jurors on Saturday morning, to give his closing statement. This case is about our officer corps, Dolan began, adding that officers set the standard – the high ground -- especially in war. “If we can’t maintain this standard in a country like Iraq,” Dolan told the jurors, “we can’t do it anywhere.”

Dolan said Welshofer had failed to abide by simple rules, adding that the defendant “became a law unto himself.”

Dolan then turned to some of the basic elements underlying the murder charge. Brandishing the sleeping bag and the electric cord, the prosecutor noted that using the sleeping bag technique in the way Welshofer did was “inherently dangerous to life,” because he had no way to monitor the general’s condition. If the jurors had any doubts on the point, Dolan said, they should take the sleeping bag and the electric cord to their deliberations and try it out on each other.

Moments later, in arguing that Welshofer had acted “in wanton disregard of human life,” Dolan ratcheted up his delivery another notch: he showed the horrific photographs of Mowhoush taken shortly after his death. Front, back, sides, arms, legs – each angle provided another gruesome picture of contusions and bruises that practically covered the general’s body. Couldn’t Welshofer tell he was injured? Dolan asked rhetorically, exclaiming in a tone of incredulity, “Look at those pictures!”

Dolan then turned to one of the key elements offered by the defense: that Mowhoush had not died of asphyxiation, which was the finding of the Army pathologist who conducted the autopsy. Rather, the defense claimed, Mowhoush, who weighed at least 250 and perhaps more than 300 pounds, had a drastically enlarged heart, and who suffered from other maladies revealed by the autopsy, had died of heart failure brought on by the stress of sixteen days of captivity, humiliations, and beatings.

“Stress?” Dolan asked sarcastically. “Stress is when you have a lot of work to do and not a lot of time to do it.” Then, describing anew what Welshofer had done to General Mowhoush on the day he died, the prosecutor thundered, “That’s not stress, that’s murder!” A moment later, Dolan, referring to Welshofer, said, “He treated that general worse than you would treat a dog.”

The prosecutor said he found no pleasure in saying such things. He noted that, until the events at the Blacksmith Hotel, Welshofer had served honorably.

Dolan harkened back to testimony from a witness hidden behind a curtain, the one who had been on the stand when Spinner let slip his “CIA” reference. The prosecutor reminded the jury that the witness had spoken to Welshofer on the day before Mowhoush died. They had been discussing a memo that included rules for interrogators. The witness, Dolan said, quoted Welshofer as having said to him, “Yeah, I’m aware of that memo and we’re breaking those rules every day.”

Finally, Dolan dealt with the fact that General Mowhoush was widely believed to be deeply involved in the insurgency which, by that time, was inflicting spiraling casualties on U.S. forces. Invoking a time-honored courtroom expression, Dolan said, “It doesn’t matter what we think of the victim; he’s not on trial.”

Defense Closing Statement

“The gloves are coming off, gentleman.” Defense attorney Frank Spinner was reading from a memo, dated August 30th, 2003, written by Army Captain William Ponce, who was stationed in Baghdad when he wrote it. The memo informed Army interrogators in the field that, as of yet, there were no rules of engagement for interrogations.

But, the memo noted, Americans were dying and something had to be done. In something like a role reversal, the memo – which has not been released or leaked to reporters or human rights groups – invited interrogators to submit a wish list of techniques they would like to use.

Spinner, referring to the “gloves are coming off” phrase, acknowledged that the memo was not saying that ”anything goes.” But, Spinner said, “it does send a message” (emphasizing the word “does”). In making this point, Spinner was announcing what he thought had been missing from the prosecutor’s closing statement: “Context.”

“And context,” Spinner continued, “is everything in this case. This was not a Boy Scout Camp….this was a war zone. Fellow soldiers were dying, the insurgency was rising, something had to be done.” Spinner told the jurors they would be making “a serious mistake” if they ignored context while considering the case.

Spinner pointed out that Welshofer had been trained in interrogation techniques more applicable to World War II and the Cold War. Welshofer, his attorney said, thought that there were other techniques, better techniques, to extract the intelligence information that the 3rd Armored Cavalry Regiment “so desperately wanted.”

Welshofer, Spinner said, was not a cook, not a medic, not a guard. He was an interrogator. It was not Welshofer’s job to feed the general, put a tent over his head, or provide medical help. Becoming more intense as he developed this theme, Spinner pointed out that if the job was to “fear up” (meaning to increase the detainee’s level of fear), then the job was specifically to cause discomfort.

Rhetorically and sarcastically, Spinner asked whether it was Welshofer’s job to provide milk and cookies to Mowhoush. Then, pushing his sarcasm still further, Spinner asked if Welshofer should have said, “Say, OK general, we’ll take a potty break, how’s that, general?”

Spinner turned to another consideration he described as “most puzzling.” Mowhoush not only could speak, he could speak English fluently. Why, Spinner wondered aloud, didn’t the general ever say “‘I’m hungry, I’m hurt, I can’t breathe?”

In a similar vein, Spinner noted that after the interrogation on November 24th, when eight to ten non-Army personnel had beaten Mowhoush, it took three or four or five men to carry Mowhoush back to his holding pen. Did nobody see this? Spinner asked.

Spinner referred to prosecutor Dolan showing, a short time earlier, the shocking pictures of Mowhoush’s body. Dolan had said the injuries were so obvious that Welshofer should have known that Mowhoush was in serious trouble. His voice rising, Spinner asked, “What about everyone else in camp? Shouldn’t someone else have known?” And yet, Spinner said, only Welshofer was charged in the case.

Next in Spinner’s cross-hairs was Dolan’s earlier mockery of the idea that stress had been an important factor in Mowhoush’s death. Spinner recalled that he had asked the Army pathologist, who had concluded that asphyxiation was the cause of death, whether it was possible that he had been wrong, and that the defense’s medical expert was right in saying that the cause of death was heart failure brought on by stress. Yes, the Army pathologist, had acknowledged…it was possible.

Stress, Spinner suggested, had increased every day Mowhoush was a prisoner, until the day he died. Didn’t Mowhoush’s stress level rise on November 24th, the day he was beaten by eight or ten men? Spinner wondered aloud. Conceding that it was only speculation, Spinner asked whether, after that beating, Mowhoush might have asked himself, “Are those guys gonna come back again?” And what about two days later, when he saw the sleeping bag on the morning he died? Wouldn’t that have elevated his stress level? “Of course,” Spinner said, answering his own question.

Spinner turned to the memos about guidance and rules – or absence of them – for interrogators. Welshofer, Spinner recalled, had received a memo dated 10 September, 2003 under the name of General Ricardo Sanchez, the head of ground forces in Iraq at the time. That memo outlined a number of permissible interrogation techniques. It did, Spinner pointed out, talk about stress positions.

That memo, along with the August 30th Ponce memo that invited interrogators’ “wish lists” for permissible techniques – the same memo that said, “Gentleman, the gloves are coming off” – were the only two documents that Welshofer said he had ever received.

Nearing the end of his closing statement, Spinner referred to Welshofer as “this man of integrity,” who, like so many soldiers, was willing to die for his country, and who now sat as an accused man “for killing a man like General Mowhoush.”

“I submit,” Spinner continued, “that the underlying issue in this case is putting individuals on the front lines to get that information to save lives.” Spinner, trying to explain Welshofer’s predicament, suggested a theoretical message from higher authorities to interrogators on the front line – a message that said: ‘if there are gray areas, back off.’ Clearly, Spinner was implying that this was not the message being sent to Welshofer and other interrogators; the opposite message was being sent.

After instructions from Judge Mark Toole, the jury retired for six hours, returned at about 11pm Saturday, and delivered the verdict that transformed the life of Lewis Welshofer:

  • He was not guilty of murder, he was guilty of negligent homicide;
  • He was not guilty of willful dereliction of duty, he was guilty of negligent dereliction of duty;
  • He was guilty of nothing at all in the alleged assault of another Iraqi detainee.


By Monday evening, Welshofer did not face the possibility of life in prison; he faced a maximum of three years and three months in prison.

On Monday night, Welshofer learned of his sentence: he faced no jail term and no dishonorable discharge. Further, the penalties imposed by the jury could be lessened still further by Fort Carson’s commander, General Mixon.

Moments after Monday night’s news, I reached retired General David Irvine, a former Army instructor in interrogation techniques, to seek his thoughts. Irvine advises Human Rights First on prisoner abuse and torture issues.

In reconciling the charges and the sentence, Irvine harkened back to the high-profile cases stemming from the prisoner abuses at Abu Ghraib prison, on the outskirts of Baghdad. Irvine recalled that in their trials, Charles Graner had received a ten-year jail sentence and Lynndie England had received three years. General Irvine compared those sentences to Welshofer’s, and his voice rising, said: And they didn’t kill anybody!”

The next move is General Mixon’s.