JURIST Special Guest Columnist Kathleen Duignan, Executive Director of the National Institute of Military Justice, says that the ostensibly-light sentence for Chief Warrant Officer Lewis Welshofer Jr., the highest-ranking US soldier to face a court-martial for abusing an Iraqi detainee, may actually have been consistent with the military justice system's goals of encouraging clear guidance to soldiers and promoting accountability of superiors…

Last week, Chief Warrant Officer Lewis Welshofer Jr. was convicted at a general court-martial of negligent homicide and dereliction of duty for his part in the death of an Iraqi general during an interrogation, and was sentenced by a military jury of restriction to his place of work, worship, and barracks for 60 days, forfeiture of $6,000 salary, and a formal reprimand. Immediately following the announcement of sentence, human rights groups, legal commentators, and press accounts have opined that Welshofer’s sentence was too light. But full agreement on this point does not exist. Why?

Human Rights Watch posted a report on its website describing some of the events surrounding Iraqi General Mowhoush’s death in June 2004, well before the Welshofer court-martial was convened:

• At the Al Qaim detention facility northwest of Baghdad, Iraqi Major General Abed Hamed Mowhoush is interrogated by two officers of the 66th Military Intelligence Company. They force him head-first into a sleeping bag and question him as they roll him back and forth.
• One of the soldiers, Chief Warrant Officer Lewis Welshofer, sits on the Iraqi general's chest and covers his mouth. The prisoner dies of asphyxia due to smothering and chest compression.
• The Pentagon first released a death certificate reporting that Mowhoush had died “of natural causes” — a news release added that “he did not feel well and subsequently lost consciousness.”
• But following a report in the Denver Post after the Abu Ghraib scandal erupted, the Pentagon acknowledged that, according to an autopsy report, Mowhoush died of “asphyxia due to smothering and chest compression” showing “evidence of blunt force trauma to the chest and legs” and said that a homicide investigation was underway.

Media coverage of the court-martial suggests potentially mitigating circumstances. For instance, Welshofer allegedly was told to “take the gloves off,” and received advance permission from his chain of command to use the interrogation techniques used. Welshofer also was interrogating a “high value” detainee — a senior member of the Iraqi Army and one suspected of facilitating insurgent attacks in Iraq. Civilians or contractors from another government agency could have interrogated Mowhoush before Welshofer ever entered the picture. Conflicting reports were filed in the days following General Mowhoush’s death containing physical evidence of beatings administered within a day or so of his death, but Welshofer has not been definitively painted as the sole actor. The facts, if depicted this way, may have influenced the sentencing decision.

Additionally, it is also important to recognize that a court-martial is not constructed exactly like a federal civilian criminal trial, and its goals are not entirely the same.

To better understand the sentencing process, one must understand differences between the systems. The convening authority for a court-martial is responsible for all discretionary decisions that ultimately bring a case to trial. The convening authority is not beholden to an electorate, like a prosecutor’s office, and the goal of the system is to enforce “good order and discipline.” The military prosecutor’s office essentially works for the convening authority. Discretion as to how this is accomplished rests with the convening authority.

The military accused can choose whether to be tried and sentenced by a military judge or by a panel of military members (the “jury” in civilian terms), as Welshofer chose in this case. The convening authority chooses the military members for each individual court-martial on a case-by-case basis, using the criteria set out in Rules for Courts-Martial 502(a)(1) and selected those “best qualified” for service by reason of their “age, education, training, experience, length of service, and judicial temperament.” Moreover, sentencing guidelines do not exist in the military system. Thus, there is no recommended minimum or maximum mandated for an offense, other than the range of all available punishments, which run from no punishment at all to the maximum permissible for each offense.

Civilian observers tend to question how conduct as egregious as that depicted in photographs and elicited from testimony at courts-martial like Welshofer's have been allowed to occur, and when disciplined, why some sentences, like Welshofer’s, seem rather light. But military observers most likely wonder where the chain of command was during these interrogations. The idea that there are dozens of rogue military actors might be an argument that has run its course. And where is the accountability and culpability of those entrusted with formulating, communicating, training, and enforcing detainee treatment policy to be found?

Not to be overlooked, why haven’t more senior individuals been held accountable in addition to Welshofer? Will this eventually occur? There are very few examples of accountability at the higher ranks. The most public example to date is Brigadier General Janis Karpinski, a reservist on active duty who was in charge of the Abu Ghraib facilities during its early days. She was demoted from Brigadier General to Colonel and has since written a book published in October 2005 entitled, One Woman’s Army: The Commanding General of Abu Ghraib Tells her Story. In an interview with the BBC in June 2004, she stated, “How it happened or why those photographs came to the Criminal Investigation Division's attention in January I think will probably come out very clearly at each individual's court martial.” But it seems that many of these questions have yet to be answered in this forum.

Looking at the situation in this light, Welshofer’s sentence should be less of a surprise. He was one of the first and few military members accused of mistreating detainees to demand a contested court-martial, thus rejecting any form of plea bargain that limited an inquiry into the full scope of surrounding events.

Additionally, reports suggest Welshofer was a model soldier until this point in his career, which is a factor that greatly inures to the military accused’s benefit at court-martial. Finally, the jury had the full opportunity to consider the actions of non-military actors, including those responsible for setting clear policy, and is empowered to answer with its verdict and sentence.

Some observers may think the sentence here “rather light,” and some may think it “is about right,” but if it was an outcome that cautions military members to ask for clear guidance, to be familiar with standing regulations, and to use their internal moral compasses, it was a sentence consistent with the goals of the system. Welshofer’s civilian defense counsel, Frank Spinner, was quoted in a Denver Post article right aft
er sentence was announced and offered that, “When you send our men and women over there to fight, and to put their lives on the line, you’ve got to back them up, you’ve got to give them clear rules, and you’ve got to give them enough room to make mistakes without treating them like criminals.” This is the argument that most likely persuaded the military members in the end.

Regardless of one’s viewpoint about Welshofer’s punishment, our military men and women deserve to be spared the task of creating their own guidance or being forced to make the Hobson’s choice about which orders they should disobey. It is an untenable position that will create more cases like this one. Military and civilian leaders must set standards that can be clearly communicated to the troops. This is necessary to reestablish the world’s confidence in our military, our ability as a people and nation to set and enforce the rule of law and standards of humane conduct, and to guarantee basic human rights.

Kathleen A. Duignan is the Executive Director of the National Institute of Military Justice (NIMJ) — a District of Columbia non-profit organization organized in 1991 to advance the fair administration of military justice and to foster improved public understanding of the military justice system. NIMJ’s boards of directors and advisors include law professors, private practitioners, and other experts — none of whom are on active duty, but most of whom have served as military lawyers, several as flag and general officers. NIMJ recently affiliated with the Washington College of Law, American University. The opinions expressed herein are the author’s own and do not represent those of NIMJ or of American University. E-mail any comments to her at duignan@wcl.american.edu and visit NIMJ’s websites at www.nimj.org and http://www.wcl.american.edu/nimj.
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