As England's second trial begins, questions linger

Among the issues: Who holds ultimate responsibility for the Abu Ghraib scandal?

September 20, 2005|By ARTHUR HIRSCH | ARTHUR HIRSCH,Sun reporter

The last scheduled court-martial of an Army reservist arising from the Abu Ghraib prison investigations begins today in Fort Hood, Texas, with the trial of Pfc. Lynndie R. England, who became a lightning rod of international outrage in photographs showing her holding a naked Iraqi detainee on a leash.

The 22-year-old, who was stationed in 2003 with military police in Iraq, pleaded guilty to seven charges in May, but the judge tossed out that deal when complications arose during sentencing, sending the case back for a new trial. If England pleads not guilty this time, she will be only the second of nine court-martial defendants to fight the charges.

Dan Hassett, a spokesman for Fort Hood, said yesterday that prosecutors, "for fear of prejudicing the case," could not say whether a plea was being arranged.

But England's lead defense attorney, Capt. Jonathan Crisp, said "there's not going to be a deal."

He said he planned to base much of his defense on England's history of mental health problems. Crisp said he also would focus on the influence exerted over England by fellow reservist Charles A. Graner Jr., her former boyfriend and the reputed abuse ringleader.

The photographs of naked prisoners shackled and sexually humiliated by Americans in a prison that had been a torture center under Saddam Hussein's regime discredited the U.S. military as it was working to achieve stability in Iraq. Former Defense Secretary James R. Schlesinger, who led an independent investigation of the abuse last year, has said the publicity surrounding Abu Ghraib impaired intelligence-gathering.

England faces two counts of conspiracy, four counts of mistreatment of subordinates and one count of committing an indecent act, carrying a maximum sentence of 11 years imprisonment and dishonorable discharge.

Whatever the outcome of her trial - the previous eight courts-martial have ended in guilty pleas or conviction - questions remain in the minds of several experts on military justice about why the harshest penalties have been suffered at the lowest ranks.

Born in Kentucky and raised in Mineral County, W.Va., England was stationed with the 372nd Military Police Company, based near Cumberland.

Photographs from Abu Ghraib that became public early last year made England one of the more incendiary figures in the scandal, which has involved 390 criminal investigations by the Army and penalties for 119 personnel.

Two Army sergeants also face courts-martial after being charged in June with conspiracy, assault and dereliction of duty for using dogs Abu Ghraib.

The investigation of the prison outside Baghdad became part of a larger inquiry into the treatment of detainees held since the attacks of Sept. 11, 2001, in Guantanamo Bay, Cuba, and Afghanistan.

England appeared in photographs grinning, cigarette in mouth, pointing at naked prisoners, or standing behind a pile of naked prisoners as she flashed a thumbs-up.

"I had a choice, but I chose to do what my friends wanted me to," England told the court during her first trial, in May. "They were being very persistent and bugging me. I was like, `OK, whatever.'"

England faced up to 11 years in prison in her first trial, but published reports quoted anonymous sources saying the plea arrangement called for less than 2 1/2 years.

The toughest penalty so far in the scandal has gone to Graner, the father of her son, who turns a year old next month. Accused as a ringleader in the prisoner abuse, Graner was convicted in January and sentenced to 10 years in Fort Leavenworth, Kan.

It was Graner's testimony for the defense in the penalty phase of England's previous court-martial that led the judge, Col. James L. Pohl, to question whether England believed her actions were wrong at the time - and led him to declare the plea invalid.

Military law does not allow a guilty plea unless the judge is convinced that the defendant knew he or she was doing something wrong, said Scott L. Silliman, a Duke University law professor who served as a lawyer with the Air Force for 25 years.

Silliman and two other experts on military law said the investigations so far have stopped short of holding the right people accountable for the abuses at Abu Ghraib.

"Who was responsible for seeing that it shouldn't have happened?" said Silliman. "I don't think we've peeled the onion on that. And it may be too late to do it."

John D. Hutson, dean of the Franklin Pierce Law Center in Concord, N.H., and a former Navy judge advocate, said "this is a systemic problem," and called for an independent investigation following the lines of accountability.

While two reports - one by the Army, one independent - faulted leaders at the highest levels, only one general has been punished. Army Reserve officer Janis Karpinski, who commanded the military police unit at Abu Ghraib, was demoted one rank, from brigadier general to colonel.

"I'm disappointed," said Gary Solis, a former Marine Corps judge advocate who teaches the law of war at West Point. England "represents the low end of Abu Ghraib. I think unanswered is what about the high end of Abu Ghraib?"

The Associated Press contributed to this article.

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