Two-star won’t testify in Abu Ghraib cases
Miller refuses to answer questions at courts-martial of enlisted soldiers
By Kelly Kennedy
Times staff writer
When a two-star general recently refused to testify on the grounds that he might incriminate himself, lawyers representing enlisted soldiers on trial took it as a sign that responsibility for alleged abuse at Abu Ghraib prison in Iraq was finally working its way up the chain of command.
“I’ve never heard of a general invoking his rights against self-incrimination,” said attorney Harvey Volzer, who is representing Sgt. Santos A. Cardona in court-martial proceedings set for later this spring. Cardona is a dog handler accused of mistreating Abu Ghraib detainees by allowing dogs to attack or threaten them, which Volzer said the sergeant was ordered to do.
On Jan. 10, Maj. Gen. Geoffrey D. Miller invoked his constitutional right not to incriminate himself, refusing to testify in Cardona’s case and the case of another dog handler. The same day, Col. Thomas M. Pappas accepted immunity and was ordered to testify in the same courts-martial this winter.
Miller commanded the Guantanamo Bay, Cuba, detention facility in 2002. In August 2003, the defense department sent him to Abu Ghraib to help get more information from detainees. Pappas had operational control of the prison wing where the alleged abuse took place in 2003 and has said he implemented policies based on Miller’s advice.
In previous testimony to Army investigators, Pappas said Miller told him it was OK to use dogs during investigations. Miller has denied that.
No new questions
Miller’s lawyer, Maj. Michelle E. Crawford, said Miller refused to answer any questions last week because he had already answered all questions he had been asked, and that neither she nor the general knew that Pappas had been granted immunity.
“Not a single new question has been posed to us,” Crawford said. “Major General Miller’s decision to stop answering these questions and exercise his Article 31 rights was made wholly independent of any investigations, inquiries or other proceedings that may be pending.”
Article 31 is the Uniform Code of Military Justice’s version of the Fifth Amendment.
“Neither Major General Miller nor myself were aware of any grant of immunity and order for Colonel Pappas to testify until [the Jan. 11] inquiry by members of the press,” Crawford said.
But critics say hundreds of pages of documents about a Guantanamo Bay investigation released to the American Civil Liberties Union in early January reinforce their belief that Miller was more involved than he is willing to say.
The case began in 2004, when a soldier leaked pictures to the press documenting a naked detainee at the prison in Iraq surrounded by dogs. Other pictures showed a female soldier leading a naked detainee on a leash, naked detainees piled in a pyramid, and soldiers grinning and giving thumbs-up signals above bleeding detainees.
So far, two soldiers have been convicted and six have made plea deals and received sentences of up to eight years. Dog handler Cardona, of the 42nd Military Police Detachment at Fort Bragg, N.C., and Sgt. Michael J. Smith, of the 423rd Military Police Detachment in Fort Riley, Kan., stand accused of using unmuzzled dogs to frighten prisoners.
Similar accusations have been made at Guantanamo Bay, where Miller previously held command. The problem, critics say, is that lower-enlisted soldiers are taking the blame for decisions made at the top.
“Unless I’m wrong, the military works through the chain of command,” Volzer said. “Bottom line is they were ordered to do it.”
Volzer said he did have new questions for the general, specifically requesting documents Volzer said Miller had detailed for him during a previous session.
“I haven’t seen any of those documents,” Volzer said. “I think they’re approval from people above him that, unbelievably, no one has anymore. I don’t expect to get that any other way.”
Volzer said he worked in the Judge Advocate General Corps during the My Lai massacre hearings, as well as cases involving government surveillance of Americans overseas, and he has never heard of a general using Article 31.
Eugene Fidell, president of the National Institute of Military Justice, said it is unusual for a major general to invoke Article 31.
“When they do get in trouble, it’s often dealt with administratively,” Fidell said. “In the Abu Ghraib case, a number of people have been put on trial and sent off to confinement, but no one higher up in the food chain. That does tend to rankle.”
Miller’s application for retirement has been pending for one month, said Pentagon spokeswoman Maj. Elizabeth Robbins.
The Washington Post reported that hundreds of pages of documents released to the ACLU in early January reported abuse at Guantanamo Bay, Iraq and Afghanistan, such as beatings, Koran desecration, death threats and electric shock.
According to the Post, the documents also show that a special agent in charge of the task force investigating abuse at Guantanamo Bay in December 2002, when Miller was in command, objected to “battlefield environment” practices and said investigators should use positive enforcement because it was more effective.
The aggressive techniques at Guantanamo Bay were approved by Defense Secretary Donald Rumsfeld and the Joint Chiefs of Staff in 2002. Reporters questioned Rumsfeld about the newly released documents, as well as the meaning of Miller’s unwillingness to testify, at a Jan. 12 Pentagon press conference.
“You know, there have been something like 12 major investigations of various detainee activities,” Rumsfeld said. “There have been something like 600 criminal investigations as I recall. Some 250 people have been punished in one way or another. And now what takes place is there are various actions — procedures that people go through. And I’m certainly not going to inject myself into the middle of any one of those particular activities.”
Gen. Peter Pace, chairman of the Joint Chiefs, also addressed the issue during the press conference.
“I fully expect that leaders of every rank will do the right thing at the right time as far as telling the truth as they know it,” he said. “I will simply tell you that we expect our leaders to lead by example, but we do not expect them to give up their individual rights as people.”