Three key witnesses, including a senior officer in charge of interrogations, refused to testify during a secret hearing against an alleged ringleader of the Abu Ghraib prisoner abuse scandal on the grounds that they might incriminate themselves.
The witnesses appeared April 26 at a preliminary hearing behind closed doors for Cpl. Charles A. Graner Jr., who has been identified in court-martial documents as the leader of a band of military police guards who humiliated and abused Iraqi detainees and compiled a bizarre photographic record of their activities. The prospective witnesses’ refusal to testify is described in court-martial documents obtained by The Times on Tuesday.
That all of the prospective witnesses called up by prosecutors invoked the military equivalent of the 5th Amendment right against self-incrimination indicates that key players in the abuse scandal may be closing ranks to save themselves and one another.
The documents show, however, that the military judge presiding over the hearing was undaunted by the unwillingness of anyone to step forward and speak about Graner.
Just a week after the hearing, on May 3, the judge, Maj. Dewayne McOsker Jr., ruled that there was enough evidence to proceed. He cited a CD-ROM containing photographs and videos taken inside the prison showing detainees being abused and humiliated, along with written statements from four of the other six guards implicated in the scandal.
“I believe there is enough credible evidence to establish reasonable grounds” that Graner is guilty, McOsker concluded.
Eugene R. Fidell, president of the National Institute of Military Justice, said no soldier is allowed to invoke his 5th Amendment right against self-incrimination unless he knows his testimony would leave him open to criminal charges.
“You can’t assert it unless you have a belief that there is some criminal exposure,” he said. “That’s why people do it.”
Fidell said he had never heard of a case where every prosecution witness called to the stand refused to testify, but then said, “I can’t say I know of any case that is like this one either.” He added: “People take the 5th out of an abundance of caution. People are aware of their right not to incriminate themselves. That’s been hard-wired into military justice for several decades.”
In the military legal system, witnesses who do not want to testify sign an Article 31 form in which they acknowledge that their testimony could be used against them. At a later stage, if the military decides not to charge the three who refused to testify, it could give them immunity in return for their testimony at a court-martial.
Also, at trial, prosecutors may call other guards and interrogators to build their case.
Meanwhile, the first court-martial is expected to begin today, when Spc. Jeremy Sivits is expected to plead guilty to charges of abuse and begin helping prosecutors seek convictions against the others.
In addition to the seven soldiers already charged with prison abuse, recommendations have been made that an additional half a dozen officers be reprimanded or relieved of duty for failing to treat prisoners properly and to run a detention facility in a humane fashion.
Graner faces seven charges: conspiracy, assault, maltreatment of prisoners, dereliction of duty, indecent acts, obstruction of justice and adultery.
In other closed hearings held in Baghdad, he has been described as the man in charge on Tier 1A, roughly between Oct. 23 and Dec. 1, when prisoners were stripped, beaten and humiliated; in some cases, they died.
When the Graner hearing convened in Iraq, the first government witness to refuse to testify was Lt. Col. Steven L. Jordan, who as director of the Joint Interrogation and Debriefing Center at the prison oversaw the military intelligence operations.
He would have been a significant witness because Graner and the other accused guards maintain that the military interrogators encouraged them to intimidate and “soften up” detainees so they would be talkative in interrogations.
In a report on the abuses written by Maj. Gen. Antonio M. Taguba, it was recommended that Jordan be relieved from duty and given a General Officer Memorandum of Reprimand.
He was cited for “making material misrepresentations” to Army investigators about his leadership role at Abu Ghraib; failing to ensure his soldiers were properly trained under the “interrogation rules of engagement” and the Geneva Convention prohibiting prisoner abuse; and “failing to properly supervise soldiers under his direct authority working and visiting Tier 1 of the hard site at Abu Ghraib.”
Next on the witness stand at the Graner hearing was Capt. Donald J. Reese, who as commander of the 372nd Military Police Company was Graner’s supervisor. He also signed the Article 31 form and was excused.
In the Taguba report, it was recommended that Reese be relieved from duty as the platoon leader and given a General Officer Memorandum of Reprimand. He too was accused of failing to train his soldiers in the proper treatment of prisoners of war; failing to “properly supervise” his soldiers on Tier 1; and “failing to properly establish and enforce basic soldier standards, proficiency and accountability.”
The last prosecution witness to plead the 5th was Adel L. Nakhla, a U.S. civilian contractor employed by Titan Corp. and working as a translator in Baghdad. According to a transcript of the Graner hearing, Nakhla “elected not to participate in the proceedings and was excused.”
In the Taguba report, Nakhla was questioned about what happened to several detainees who were suspected of rape. He said they were forced to remove their clothes and then were ordered by Graner and Staff Sgt. Ivan L. “Chip” Frederick II, another defendant, to admit they had committed rape.
Nakhla said Graner and Frederick threw water on the naked detainees, called them guys who “like to make love to guys” and then “handcuffed their hands together and their legs with shackles and started to stack them on top of each other,” the report said.
Army Spc. Joseph Darby, who was disgusted by the abuse photos and first alerted authorities, was called as a defense witness, but the military judge presiding over the April hearing in Baghdad said the whistle-blower was “unavailable.”