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Military JAGs seek American justice for 9/11; Congress promotes Soviet-style injustice with the MCA

As shamefully continues to be the case with innumerable civilian whistleblowers, when honorable members of our Armed Forces speak up to expose serious wrongdoing, too-often corrupt higher-ups in the chain of command silence them or countenance whitewashed investigations.

And Members of Congress – particularly the members of its powerful Armed Services Committees, chaired by Carl Levin and Ike Skelton – likewise turn their backs and a deaf ear to honest troops who report mistreatment by other members of the U.S. military of Muslim prisoners held at its limited-access prisons abroad; thereby catastrophically failing to do their duty to oversee our Armed Forces, and directly contributing to the lowering of standards (and morale) of those forces.

April, 2005:

Investigation initiated after an Interrogator associated with the 22nd MP Battalion reported that he knew of abuse that had occurred at the Temporary Holding Facility at Baghdad International Airport (BIAP). The interrogator said that "he was reporting this conduct because he felt the actions were inhumane even though every harsh interrogation was approved by the J2 of the TF [Task Force 6-26] and the medical personnel prior to its execution" (9119). The abuse included sleep deprivation, 20-hour interrogation sessions, and a guard’s providing a prisoner with urine to drink. The CID investigation appears to have been terminated because "the subject of this investigation is a member of TF 6-26 and the Special Agent in Charge, SOTF [Security Operations Training Facility], has accepted investigative jurisdiction in this matter" (9118). SOTF’s case number is 0016-04-CID343. (The SOTF file is posted below.)

October, 2004:

Investigation into allegations by senior Psyops officers in Afghanistan who witnessed indiscriminate assaults by Special Forces on villagers during raids in Gurjay and Sukhagen. Abuses included hitting and kicking villagers in the head, chest, back and stomach, and threatening to shoot villagers. Investigation failed to prove or disprove allegations and was terminated because victim and other villagers could not be interviewed due to location in high threat combat area and status as Anti-Coalition Combatants. The report indicated that the investigation should be re-opened when the high threat level was lowered.

October, 2004:

Iraqi detainee stated that he was taken from his cell to another location by plain-clothed Americans who beat him in the head and stomach, dislocated his arms and "stepped on the detainee’s nose" and broke it, while demanding he admit to having committed crimes. He claimed that one of the soldiers later beat his leg with a baseball bat. Medical reports in the file confirm that the detainee had a broken nose, fractured leg and scars on his stomach. Soldiers confirmed that TF 20 interrogators questioned the detainee, and wore plain clothes. Although the case was initially closed, it was reopened based on an indication that the detainee’s initial reticence to make a formal complaint was due to threats by U.S. soldiers. The investigation was closed after it "failed to prove or disprove" the offenses.

August, 2004:

Investigation into allegations of detainee abuse at Abu Ghraib in Sept. 2003 by members of the 519th Military Intelligence Batallion. SPC at Abu Ghraib provided sworn statement that he overheard a MP dog handler stating that a game was being played to see which dog handler could get the most detainees to urinate on themselves. Investigation established the offense of detainee abuse did not occur as alleged by members of the 229th MP company.

August, 2004:

Investigation initiated following discovery of a CD during an office clean-up in Afghanistan, containing numerous pictures of American soldiers posing with pistols and M-4 rifles pointed at the heads and backs of hooded and bound detainees. The photographs were taken by a number of soldiers from the Second Platoon of the 22nd Infantry Battalion while stationed at Fire Base Tycze, Dae Rah Wod.

Numerous soldiers admitted to posing in the pictures and taking and downloading the photographs as "mementos" of their time in Afghanistan. The investigation found probable cause to believe that eight soldiers committed the offense of Dereliction of Duty, but not the more serious charge of Aggravated Assault. Most of the soldiers interviewed stated that they were not aware of any set policy on the treatment of detainees, and did not realize at the time that their actions were wrong. A sergeant stated that he had also seen pictures on Army computers of detainees being kicked, hit or inhumanely treated while in U.S. custody.

The photographs also included pictures of soldiers "PUC’ing" (Person Under Control) each other, a platoon ritual in which soldiers would be bound and hooded like detainees by other platoon members, and have water thrown on them.

August, 2004:

Investigation into aggravated assault, maltreatment of a person in US custody at Bagram airfield detainee facility, Afghanistan. Unable to interview victim – US has preferred charges against him and cannot be interviewed until after trial in complete. No detainee packet available on victim.

July, 2003:

Investigation into accusations of assault, conspiracy, willful dereliction of duty and cruelty and maltreatment when soldiers on two separate occasions conducted a mock execution of an Iraqi teenager. Location was near an ammunition factory in Gahzalia, Iraq. Investigation established probable cause to believe that solider committed assault, conspiracy, release of a detainee without proper authorization, willful dereliction of duty and cruelty and maltreatment. No records of results of prosecution of soldiers involved.

April, 2003:

Investigation initiated after SGT reported that he witnessed several counter-intelligence agents (all associated with the 223rd MI Detachment) "strike, pull the hair, and force into asphyxiation numerous Iraqi detainees." The SGT also stated that "some of the CI agents would point a loaded weapon at the detainees’ heads and tell them they would kill them if they did not talk" (8809). The SGT stated that "it was a chamber of horrors up in Samarra" (8837). In a signed statement, the soldier says that he also "observed staged executions." The soldier states that he "went to CPT [redacted]’s office, who is my company commander. I told him I was requesting an investigation into interrogation brutality used by my three team members. CPT [redacted] accused me of lying and said I had no integrity. He said I had 30 seconds to withdraw the request or he was going to send me forcibly to go see a psychiatrist." The CPT later told the soldier that he had been appointed the AR 15-6 investigating officer. Soldier: "I questioned him on the validity of him being the AR 15-6 officer when in fact he was the THT67 former OIC and the conflict of interest it posed." The next evening, the soldier was flown to Germany (8845). Unnamed civilian interviewee recounts conversation in which SGT told him, after conversation with CPT, that "This is what I saw and they think I’m crazy but they’re wrong." The civilian states that he heard female CPT [presumably the psychiatrist] state: "There’s nothing I saw or heard that leads me to think SGT [redacted] is mentally imbalanced." In response, CPT [redacted] states: "I don’t care what you saw or heard, he is imbalanced, and I want him out of here." Civilian then "observed [female] CPT flinch and he could see the pressure in her eyes, like she had never had that kind of pressure put on her previously. Mr. [redacted] stated the next day CPT [redacted] went back and changed her diagnosis" (8917). E-mail notes that "Dr. [redacted] stated that CPT [redacted] went to her commander to influence her decision to send SGT [redacted] back to the US. As a result, her chain of command put ‘undue pressure’ on her which did influence her decision" (8972). The investigation "established that there was insufficient evidence to determine whether the offenses…occurred" (8809). There is no indication that the commander was investigated or held accountable for retaliating against the soldier who alleged the abuse.

Those are summaries of some of the (more-often-than-not, inconclusive) Military CID & CIS investigations into alleged UCMJ violations by U.S. troops in Iraq and Afghanistan – investigations with accompanying photographs which Congress is desperate that neither they nor we hear about or see. These case files were obtained by an organization that amounts, given the abdication of oversight by our actual Congress, to a Shadow Congress – the ACLU, using the Freedom of Information Act.

President Obama, the Commander in Chief of these forces, is working hard, just like Congress, to look the other way, endorsing a Supreme Court filing this Friday by his Solicitor General, as he attempts to overturn the appeals court mandate to release to the ACLU those secret CID-case photographs demonstrating the military’s abuse and mistreatment of its Muslim prisoners:

The responsive photographs that petitioners withheld from the publicly released CID reports depict detainees in Iraq and Afghanistan while in United States custody. Several of those images are described in the CID reports themselves. The reports, for instance, explain that the photographs include an image showing several soldiers posing near standing detainees who are handcuffed to bars with "sandbags covering their heads" while a soldier holds a broom as if "sticking [its] end* * * into the rectum of a restrained detainee," CID Report D 4782; see Pet. App. 169a-170a (discussing Report D); an image of a solider who appears to be in the process of striking "an Iraqi detainee with [the butt of] a rifle," CID Report F 8653; and several other images that show soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees. See, e.g., CID Report E 6178-6182, 6191, 6203, 6214-6216, 6250-6253, 6267, 6271, 6361, 6458, 6470; see Pet. App. 169a-170a (discussing Reports C and E). Three of the six investigations led to criminal charges and, in two of those cases, the accused were found guilty and punished pursuant to the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.See Pet. App. 169a-170a.


[Footnote 8: […] Second, on July 9, 2009, the Senate passed the [Graham/Lieberman Detainee Photo Suppression] Act by unanimous consent as amendment to the Department of Homeland Security Appropriations Act, 2010 (H.R. 2892). Id. at S7303-S7304, S7370 (H.R. 2892 § 567(a)). The Senate passed the appropriation act, has requested a conference with the House, and has appointed conferees for H.R. 2892. Id. at S7311-S7312 (July 9, 2009); see id. at H8012 (July 13, 2009). The President recently informed the sponsors of the pending detainee-photograph legislation that he "supports this legislation" and "will work with Congress to get it passed." Letter from Pres. Obama to Sen. Lieberman & Sen. Graham (July 29, 2009).]

In passing, SG Kagan hypocritically intoned:

The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action. There are neither justifications nor excuses for such conduct by members of the military.

While neglecting to add that: Nevertheless we, and our "overseers" in Congress will carefully take no notice of such "reprehensible" (and mostly unpunished) conduct, and continue to look the other way, if the Supreme Court will just help us cover up.

Despite the lack of thorough, meaningful self-monitoring oversight, as the release of these photographs would doubtless demonstrate with regard to all the ‘inconclusive’ CID investigations, the military still has nothing to fear from Congress, which is why scandalous episodes like the following can occur without consequence to anyone but our helpless detainees:

Shortly after assuming command of JTF-GTMO [Guantanamo Bay] in March 2004, Major General (MG) Jay Hood ordered the "frequent flyer" program discontinued. Apparently unknown to MG Hood, the accused [Mohammed Jawad] was subjected to the frequent flyer program and moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours. The accused was shackled and unshackled as he was moved from cell to cell. The Accused was not interrogated and the scheme was calculated to profoundly disrupt [] his mental senses.


This Commission finds that, under the circumstances, subjecting this Accused to the "frequent flyer" program from May 7-20, 2004 constitutes abusive conduct and cruel and inhuman treatment. Further, it came at least two months after the JTF-GTMO commander had ordered the program stopped. Its continuation was not simple negligence but flagrant misbehavior. Those responsible should face appropriate disciplinary action, if warranted under the circumstances.

Military Judge Army Colonel Stephen Henley, September 24, 2008

As honorable military JAGs are pointing out at every opportunity, whether Congress is listening or not, in addition to the complete failure of Congressional oversight and enforcement of humane treatment standards in our military prisons, the one-sided Soviet-style show trials for our Muslim prisoners created by the 2006 Military Commissions Act (MCA), still endorsed (with tinkering-at-the-edges amendments) by the likes of Carl Levin and Harry Reid, are founded on profoundly unAmerican values:

True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

– Major David Frakt, Air Force JAG, 7/2009

JAG defense counsel Major Frakt (and former JAG prosecutor Lt. Col. Vandeveld) aren’t afraid of American values, and Members of Congress whose words and actions reveal fear and loathing of American standards of justice demonstrate how unworthy they are to represent or speak for the American people:

If the military commissions law is actually rewritten to make the commissions "regularly constituted courts," as required by the Geneva Conventions, then most of the same rules that apply for "you or me" would apply to detainees. This does not mean that Miranda would apply or that Fourth Amendment search and seizure rules would apply. No one has seriously argued that Miranda or the Fourth Amendment applies to non-citizens captured on a foreign battlefield, or that a warrant would be required for a search of a person or place overseas. Simply moving the detainee into federal court would not suddenly make these constitutional requirements apply retroactively to acts which occurred overseas years ago.

The main point of contention at this point between Congress and the Administration is whether statements which were obtained by coercion, which did not rise to the level of torture, should be admitted. The Administration has proposed a voluntariness standard for admissibility. Had we complied with the Geneva Convention Common Article 3 minimum standard of humane treatment, it is likely that virtually all statements would be considered voluntary. But by direct order of President Bush and Secretary Rumsfeld [acting with impunity in the absence of Congressional oversight…], detainees were not treated humanely, so there are many statements which were obtained involuntarily. These statements are categorically unreliable because of the circumstances under which they were obtained. We have seen, for example, that Binyam Mohammed admitted to a wild assortment of crimes that he did not do while he was being tortured.

"A well-designed military commissions law" in my opinion, would essentially reproduce a general court-martial, which would provide virtually the same due process guarantees as a federal criminal court. Thus, it would not be any easier to get a conviction in a military commission than in civilian criminal court. It is this essential truth that will prevent us from getting a well-designed military commissions law.

I think that if a person is responsible for a major terrorist attack or other serious crime, then the government should be able to prove that with non-coerced evidence. There should be witnesses. There should be physical evidence. There should be circumstantial evidence.


I reject the premise that "terror detainees" deserve anything less than equal treatment. You are talking about human beings who have been locked up for years and mistreated in the most cruel ways. If they are now to be tried for crimes, then they are entitled to a presumption of innocence and a fair trial. The rights that we afford to defendants in civilian trials are what we have determined to be the minimum standards for a fair trial. No conviction will ever be considered legitimate if acquired in a court that provides anything less.JAG Officer Frakt, August, 2009

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