Why Should This Court Martial Care About Waterboarding?

“Lots of people in the world care if waterboarding happened at Guantanamo. Why should this court martial care?” So asked the presiding Judge, Lieutenant Colonel Paul H. McConnell, of Harvey Volzer, Sergeant Cardona’s civilian defense counsel, toward the end of the first day of the court-martial. Waterboarding (the alleged practice in which the detainee is tied to a board, with cellophane wrapped over his face  and water is poured over him making him feel like he is drowning) is not at issue in this trial of a military dog handler accused of using his dog to abuse detainees in Iraq. So how did it come up? Volzer and his counterpart, Maj. Christopher Graveline, the military prosecutor, were arguing over the documents to which Volzer could refer during his opening statement on Tuesday. The argument made clear the issues at the heart of this case:who authorized deviations from existing military law and doctrine on detainee detention and interrogation, how did those deviations (and authorization) migrate back and forth among  U.S. operations in Iraq, Afghanistan and Guantanamo, and what impact does any of this have on the innocence or guilt of Sgt. Cardona? In the opening statement, each side will want to present to the jury (referred to as panel members in the military justice system) its own narrative about the case in such a way that when the jury listens to a witness or sees a piece of evidence, they evaluate it in light of that side’s theory of the case. Based on the documents to which he wanted to refer, Volzer’s theory will be that authorization for deviations came from the top levels of command, techniques authorized for one theatre of war or detention (in the case of Guantanamo) migrated to others, and confusion reigned at Abu Ghraib about what the rules were and to whom they applied. Although we in the public couldn’t see the specific documents the lawyers and the judge had in front of them, it was clear that among them were: a  February 7, 2002 White House memo (in which the President determined that al Qaeda detainees did not merit the protections of the Geneva Conventions and that detainees captured would be afforded humane treatment only “to the extent appropriate and consistent with military necessity”); a  November 27, 2002 Memo in which Secretary of Defense Rumsfeld authorized specific techniques including “using detainee’s individual phobias (such as fear of dog) to induce stress,” “stress positions,” “hooding,” 20-hour interrogations, removal of clothing, prolonged isolation, sensory deprivation, and “forced grooming” for use at Guantanamo; and the April 4, 2003 Pentagon “Working Group” Report and April 16, 2003 Secretary Rumsfeld Memorandum, which provide dubious legal support for and lay out recommended techniques that could be used on detainees in Guantanamo.”  According to Volzer, witnesses would testify that each of these were among the documents brought by General Miller to Iraq and were part of the authorities U.S. officials, including Col. Pappas and General Sanchez, relied on to formulate interrogation rules for detainees in Iraq. In response, the prosecution argued against the documents’ relevance to the issue of Sgt. Cardona’s guilt or innocence, and would not concede that the documents had been relied on by U.S. officials in Iraq. In the end, the Judge ruled that none of these three specific documents could be admitted for the purposes of the opening statement. According to the Judge, the two questions most important to him were: (1) was the document in Iraq and/or considered by U.S. personnel in Iraq; and (2) what would the witness(es) say about how the document was used there. He added that the defense could seek to reintroduce the documents later during the proceedings depending on the content of witness testimony. Underlying the Judge’s decision was a concern about how the larger issues of authorization of interrogation techniques applied to the particular facts of Sgt. Cardona’s case.At least part of the answer, I think, lies in the  Washington Post article to which my colleague Avi referred on Monday.But the article is not evidence and how much of the events it describes will be allowed into and discussed in Sgt. Cardon’s court martial proceedings remains to be seen. Most of the rest of the day was taken up with selection of the court martial panel members in a process called “ voir dire“, which is intended to ferret out potential jurors’ biases.  The final panel has seven members, including four officers and three enlisted personnel. Tuesday: opening statements, likely more arguments about what evidence the jury can see or hear, and maybe the first few witnesses in the prosecution’s case.