Fifteen years ago, a set of photos shocked the national conscience. Vivid images of prisoner and detainee abuse in Iraq brought war into American homes in a way that had not been felt since the Vietnam era. The images showed Soldiers “graphically mistreating and sexually humiliating Iraqi prisoners.” The photos “depicted [Soldiers] leering and grinning as they forced naked detainees to simulate sex acts, beat them, piled them into a pyramid, put one on a leash, attached wires to a man in a pointed hood, menaced prisoners with vicious dogs, and subjected them to other abusive treatment.” International news media broadcast the images on television screens worldwide. The photos dominated the covers of national newspapers and weekly U.S. news magazines. News sources from daily regional newspapers to Internet media focused their investigative power on one story, and one story only: Abu Ghraib.
National U.S.-news media outlets 60 Minutes II and The New Yorker first brought allegations of prisoner abuse by U.S. Soldiers working at Abu Ghraib prison in Iraq to the public in April 2004, a month after the government initiated criminal charges under the Uniform Code of Military Justice (UCMJ) against six Soldiers still stationed in Iraq. Once the allegations came into the public eye, the government’s investigation expanded exponentially, to include reviewing the individual conduct of Army General Officers and the collective U.S. interrogation policy.
But still, at the center of it all, remained the courts-martial of the six enlisted Soldiers facing dozens of charges ranging in severity from dereliction of duty to aggravated assault to indecent acts to conspiracy. The first of those original six cases was tried in May 2004, when Army Specialist Jeremy Sivits pled guilty at a special court-martial to several charges stemming from detainee abuse in November 2003. The remaining cases would be tried across three continents and last for several years.
Military counsel for the original six co-accused, defense and prosecution alike, have moved on in their legal careers. Many have retired from the military; several continue to serve on active duty and as reservists. Now, with fifteen years of hindsight, The Army Lawyer asks the legal teams for the government and the original six co-accused what it was like to be a part of one of the largest and most polarizing cases of Operation Iraqi Freedom.
TAL: How did you first become involved in the Abu Ghraib cases?
Lieutenant Colonel Chuck Neill, Staff Judge Advocate, 10th Support Group and U.S. Army Okinawa (then a Captain and Chief of Military Justice, III Corps): In January 2004, we deployed to Iraq for Operation Iraqi Freedom for the calendar year. Divisions and other units generally deployed for twelve months starting in the summer (I think to ensure some continuity and to avoid all units leaving and arriving at the same time). Before we arrived, we published a jurisdiction scheme that included a ‘catch all’ provision. It directed that any unit in Iraq that did not fall under another General Court-Martial Convening Authority (GCMCA) in country would fall under III Corps for UCMJ purposes. When we drafted that memo, I had no idea the scope of the work we were taking on. Scattered throughout Iraq were multiple units that did not fall under a GCMCA, including the 800th Military Police Brigade. About two weeks after we arrived, Criminal Investigation Command (CID) sent me a disk with the Abu Ghraib detainee abuse pictures. I didn’t have an office, so I went to a small side room in the courthouse—I sat in a folding chair with a laptop and reviewed the photos and the investigation.
Colonel John M. McCabe, Staff Judge Advocate, U.S. Army Cyber Center of Excellence and Fort Gordon, Georgia (then a Captain and Trial Counsel, 16th Military Police Brigade): [I] arrived in Kuwait on 12 January 2004, pending travel to Baghdad. On 13 January 2004, Specialist (SPC) [Joseph] Darby anonymously turned over photographs to CID at Abu Ghraib. A couple days after 13 January, the brigade commander (then-COL [David] Quantock, now-LTG(R) Quantock) called me in, told me about the possible abuse, told me the Battalion Commander at the prison was being suspended and our Brigade Deputy Commanding Officer would fly to Baghdad and temporarily take over command at the prison. I then arranged to meet with CID at Abu Ghraib and review their files on the abuse.
Colonel Robert L. Shuck, Military Judge, 3d Judicial Circuit, Fort Riley, Kansas (then a Captain and Senior Defense Counsel, Baghdad Field Office, Region IX): When I arrived in March 2003, my boss, then-Major Nate Ratcliff (Regional Defense Counsel Iraq/Kuwait/Afghanistan) handed me a thick three-ring binder and told me I was going to be representing the most senior non-commissioned officer (NCO) involved—Staff Sergeant (SSG) Ivan ‘Chip’ Frederick.
Mr. Fred P. Taylor, Staff Director, Trial Judiciary, Office of Military Commissions (then a Lieutenant Colonel, Regional Defense Counsel (RDC), Region IX, Trial Defense Service): [I] represented Brigadier General (BG) Janis Karpinski, Commander, 800th Military Police Brigade in the effort to respond to the findings of the Army Regulation (AR) 15-6 [Taguba] Investigation. I went TDY to Kuwait in [possibly] February 2004 and spent several days in a secure facility reading the report and crafting a rebuttal which was presented to Commander, Coalition Forces Land Component Command/3d Army. In April/May 2004, I deployed as the RDC, Region IX, where I supervised the defense effort until the cases transferred to Fort Hood.
Mr. Scott Dunn, Attorney Advisor, 5th Recruiting Brigade, Fort Sam Houston, Texas (then a Captain, Senior Defense Counsel, LSA Anaconda (Balad), Region IX): I was detailed to represent Sergeant (SGT) Javal Davis after the initial round of preferrals. I don’t remember the date very well, but it was probably in April 2004. It was before it had hit the media.
Mr. Mike Holley, First Assistant District Attorney, Montgomery County District Attorney’s Office, Texas (then a Major and Chief Prosecutor, III Corps, Camp Victory (Baghdad, Iraq): On stage, as The Judge Advocate General handed me my diploma at the Grad Course, he said “Holley, I think we are sending you to Iraq for some cases.”
What were your initial thoughts upon reading the allegations?
Lieutenant Colonel Patsy M. Takemura, Deputy Staff Judge Advocate, 9th Mission Support Command, and Deputy State Attorney General for Hawaii (then a Captain, Defense Counsel, Camp Arifjan, Kuwait, and defense counsel for SPC Sabrina Harman): I found it incredulous that these kinds of allegations arose. I thought that there would be more accountability and oversight of Soldiers to ensure things like the allegations of abuse of detainees did not occur.
Command Sergeant Major Mike Bostic, The Judge Advocate’s Legal Center and School Command Sergeant Major and Noncommissioned Officer Academy Commandant (then a Sergeant First Class (SFC), Senior Paralegal NCO, Brigade Operational Law Team, 16th Military Police Brigade (Airborne)): My initial thoughts were “how could this happen?”
Mr. Christopher Graveline, Director, Professional Standards and Constitutional Policing, Detroit Police Department (then a Major and TC, Camp Victory, Iraq): My initial inclination upon seeing the pictures in the media was to believe the Soldiers when they said these photos represented illicit interrogation practices because I didn’t want to believe that our Soldiers were capable of these acts absent some justification. . . . I quickly realized my initial inclination was incorrect.
DUNN: I knew immediately that the case would be a ‘big deal’ and get major media coverage. The pictures were destined for notoriety, to say the least. I distinctly remember receiving the case file at the Trial Defense Service (TDS) office on Victory Base. When I accepted it, CPT Rob Shuck told me that it was going to be a huge story before I even opened the file. He was certainly right. Even so, I may have underestimated the firestorm. It went beyond my expectations. Also, I did not anticipate the broader meaning that the anti-war movement would ascribe to the incidents at Abu Ghraib. That soon became evident, however, after the story broke.
HOLLEY: I do remember my initial reaction to looking through all of the photographs in one sitting. I cried. I tried hard not to show it. But I did.
NEILL: To be perfectly honest, I was shocked by the images. I felt like the wind had been knocked out of me. But I didn’t think these would be high-profile cases. It was disturbing that Soldiers were abusing prisoners and smiling while they were doing it. They seemed weirdly disconnected from what was happening. I remember looking at one picture with naked, hooded prisoners stacked in a pyramid. It was a horrifying image. In the same picture, Soldiers are standing behind the picture smiling and giving a ‘thumbs up,’ like they were part of some hilarious private joke. The offenses were serious, but nothing stood out to me as high profile. I remember thinking there are cases back home where corrections officers abuse prisoners. Those cases are prosecuted but hardly make the evening news. Looking back, I had no idea how much I was misjudging the notoriety and scrutiny these cases would receive.
SHUCK: [I was] overwhelmed and terrified. Our TDS ‘offices’ when I first arrived consisted of a large, mouse-infested shipping container. Frequent Improvised Explosive Device (IED), mortar, and rocket attacks/explosions happened almost every morning. I was sleeping every night in a sand flea-infested large tent. Trying to get adjusted to Iraq and at the same time [being] handed a significant case was hard to manage.
How did your training as a paralegal, lawyer, or Army Soldier prepare you for your role in the Abu Ghraib cases?
TAKEMURA: Fortunately, I had been a criminal defense attorney for twelve years with the Hawaii Office of the Public Defender when I started this case. I had interactions with the local media. Nothing like the media for Abu Ghraib though. My experience as a civilian Deputy Public Defender prior to the Abu Ghraib trials gave me the foundation to tough it through and gave me a sense of my role, duties, and responsibilities. I had a strong foundation in the constitutional presumption of innocence, affording a zealous defense, seeking a fair trial, and being open-minded to a criminal defendant and their side of the story.
NEILL: Before going to III Corps, I was a TDS counsel at Fort Hood for twenty-one months. I think TDS is the best place to learn criminal law and grow as a trial attorney. I think defense work teaches you how to break down a case into its component parts and look for weaknesses. A good TDS counsel will review specifications with a fine-tooth comb, looking for omissions and ambiguity. A defense counsel will hold the government to its burden in court and looks for any cracks in the government case. In my mind, a good TC should do the same when building a case—honestly assess weaknesses, scrub the specifications for errors, and consider lines of attack. It’s been my experience that, too often, TC conduct a superficial analysis of a case and give short shrift to how the defense will attack the case at trial.
HOLLEY: The situation is analogous to the training for other Soldiers. Infantry Soldiers learn fundamentals of their craft at Basic and Advanced Individual Training (AIT). They then adapt that training to the complex, challenging environment of Iraq. Similarly, learning the fundamentals of our craft at the Judge Advocate General’s School (the graduate course was particularly helpful) made all of this doable, provided the right leadership was in place—which it was.
DUNN: That’s an interesting question. To a degree, there’s no way to prepare for something like that. On the other hand, the actual legal work wasn’t so different than any other case. There were some twists or unique aspects to it, of course, but the allegations weren’t particularly complex.
BOSTIC: My training as a paralegal and senior NCO prepared me well for my role in the Abu Ghraib cases. As the lead support person to the TC, previous experiences prepared me to assist the TC and enable shared understanding of the mission.
SHUCK: I was fortunate to have had a very busy jurisdiction as a TC and almost a year under my belt as a defense counsel before being assigned to the case. I felt as qualified as anyone could be to assist SSG Frederick and was lucky to have a competent civilian defense counsel also assigned to the case. With that said, nothing could have prepared me for Iraq in 2003.
What challenges did you face during your involvement in the case?
HOLLEY: Numerous! Our prosecution team had its hands full on every front. Everything was difficult, but resources for every challenge were ultimately provided.
BOSTIC: The challenges that I recall were typical . . . being on the legal team and having to see subjects of an investigation/accused daily; access to information and victims; and security of the case file. As with any high-profile case we keep it ‘need to know.’ Many personnel in the unit wanted to know what was going on and why these personnel were attached to our unit. The legal team set up with the ALOC (Administrative and Logistics staff (S1/S4)) and we shared work space and we always had to keep our files secure. We convoyed weekly to the prison to conduct interviews and training to prepare the case. Operational security and main supply route security/threats posed challenges.
GRAVELINE: As the prosecution team, one of our biggest challenges was collecting and disseminating discovery. At times during the summer of 2004, it seemed as if we were learning more about our cases from the Washington Post and New York Times since the White House, Department of Defense (DoD), and Department of Justice were releasing numerous documents concerning interrogation policy and practice due to the detainee abuses at Abu Ghraib and in Afghanistan. In order to solve this problem, the team decided that one counsel should travel back to D.C. (I drew the short straw) to collect discovery from the various federal agencies with personnel at Abu Ghraib. Being able to collect over 10,000 pages of discovery (a portion of which was classified), crafting non-disclosure documents, and delivering those documents to over a dozen defense counsel was a monumental task.
TAKEMURA: While we were in Iraq, we did not have access to certain civilian expert witnesses because they refused to come into a war zone. After transferring to Fort Hood, Texas, we did not have readily available access to witnesses and locations in Iraq because of the time and distance. It was not easy to keep track of Iraqi witnesses because they would be moved to different locations without our knowledge and sometimes could not be tracked.
DUNN: I was on a different forward operating base (FOB) from my client and all of the relevant witnesses. That imposed inherent difficulties that weren’t necessarily unique to the Abu Ghraib cases, but they were considerable. Travel to Victory Base [in Baghdad] required either rotary wing travel or joining up with a ground convoy. Those means of travel were available, but not at [TDS] convenience. Traveling to Abu Ghraib prison required a ground convoy and was not the most secure location even when we were there. Phone communication between FOBs, and thus between me and [my client], was okay, but spotty. Likewise, phone communication was not always easy with my civilian co-counsel, who was in the continental United States (CONUS) most of the time. Bringing him into theater when necessary was a logistical issue in and of itself, though I give III Corps Office of the Staff Judge Advocate a lot of credit for working the logistics for us. Then-Colonel (COL) [Butch] Tate, the staff judge advocate (SJA), [was] quite reasonable about assisting us with logistical issues from the government side of the house. The same goes for the then-CPT Neill, the Chief of Justice. I thought they were very professional.
NEILL: We were very fortunate to have incredible command support. The Abu Ghraib accused were assigned to a different brigade after the investigation was completed. The unit set up an air-conditioned tent for the Soldiers, giving them privacy and space to prepare for trial. Our GCMCA supported expert assistance for each trial team. Following the initial guilty plea (in United States v. Sivits), we detailed a psychologist or psychiatrist to each accused. For a later guilty plea, Dr. Philip Zimbardo (of the Stanford Prison Experiment) testified via video teleconference to our courtroom on Victory Base. I think the lion’s share of the credit should go to COL Karl Goetzke and then-COL Butch Tate, who convinced senior leadership that these cases needed to be tried well, and that would be expensive and time-consuming.
TAYLOR: The III Corps Rear SJA’s (COL Brown, U.S. Army Reserve) response to my request for support for the five teams as they transitioned to Fort Hood and set up shop to try the cases there at Fort Hood. He accepted the request without argument and to the best of my knowledge/recollection provided the team everything we requested.
How did “mass media” affect your ability to do your job back in 2004-2005?
TAKEMURA: It was very difficult. The media would hound us in the court parking lot as soon as they saw us pull up. It would have helped tremendously to have had training by public affairs or had a public affairs officer assist [the defense] and fend off the media and allow us to do our mission.
GRAVELINE: Mass media was ever-present. Every hearing and trial were heavily covered by every major news outlet. Consequently, we were unofficial spokespersons for the Army. As an advocate, I had to be aware that any statement I made in court could be quoted and repeated many times over. Because of the continuous media presence, I made a conscious effort to be circumspect in statements that I made on the record and tried to avoid what may otherwise be harmless attempts at humor in court.
HOLLEY: Mass media was just another challenge among many. Having a talented judge advocate (JA) (Captain Rose Bleam) dedicated to handling the press was a tremendous blessing. One of the best things we did—and one that I highly recommend—was a creating a written document each day of trial or hearings to give to the press that carefully, clinically, and clearly explained what happened in the courtroom and why. These cases were the moment that I realized how often the press gets things wrong, not intentionally, but simply because they don’t have the expertise, they get in a hurry, they mishear or misunderstand, etc. (Honestly, it influences how I read news stories to this day.) For example, when the Convening Authority determined to move the Graner case back to Fort Hood for trial, some members of the media reported that the Regional Defense Counsel made this decision. That was not intentional, just a mistake. Providing a daily document helped increase accuracy and understanding. I also maintain that the primary trial lawyers in the case should largely if not entirely reserve their comments on the case for the courtroom, not the press room.
NEILL: After the 60 Minutes II report (in late-April 2004), we made some logistical changes to accommodate media coverage. Our first hearings and the first guilty plea were held at a convention center in downtown Baghdad in May 2004. The facility had a huge seating area and an overflow room with closed circuit feed. At the time, it was a hassle—convoying with counsel and several accused around Iraq. But I was proud of the work we were doing and I was glad the world would get to see it. Looking back, I think the media coverage was skeptical, but fair. However, I was bothered by the implication that we only prosecuted these cases because of the media attention. It’s just plain wrong. The Command preferred and referred these cases before the 60 Minutes story. We had an approved pretrial agreement before the 60 Minutes story. In other words, we were moving ahead at a rapid pace after getting the investigation (and well before any media coverage of detainee abuse).
BOSTIC: We knew the day before the news circuits broadcasted the allegations. Otherwise it did not affect us at all. It was interesting seeing the Secretary of Defense come ‘under fire’ and comment on a case I was working because of the underlying interrogation techniques that may or may not have been a significant part of the case file.
MCCABE: Mainly, I remember seeing the hysteria on the cable tv news channels. There was little interest until the 60 Minutes show aired and that was after the [Article] 32s were almost all complete.
SHUCK: Major Ratcliff gave me the best advice for dealing with all the press inquiries and contact—just ignore it.
When you needed to run an idea by someone, on whom did you rely?
MCCABE: I immediately reached back to the Fort Bragg, XVIII Airborne Corps, Chief of Justice—the late, great COL Robert Cotell. I actually sent him copies of all the materials and got a sanity check on much that I was doing. He provided me valuable advice and mentorship. I must also say the two III Corps SJAs . . . COL [Karl] Goetzke and then-COL Tate as well as the III Corps Chief of Justice, then-CPT Chuck Neill, were all great sources of information, advice, and mentorship. There are many others who provided daily advice as well. Specifically, CPT Kyson Johnson and my brigade paralegals then-SFC Bostic and then-SGT Kary were absolutely the best, and made things happen. There would not have been success without those two and Kyson.
GRAVELINE: Then-Lieutenant Colonel (LTC) Mike Mulligan (then-head of TCAP) was a frequent confidant and provided much guidance throughout the entire process.
TAKEMURA: [There were] not many people I could run anything by. I really felt alone.
HOLLEY: [My colleagues] had an abundance of riches in talent and experience for these cases. I also leaned heavily on then-LTC Patricia Ham [former Criminal Law Department Chair at The Judge Advocate General’s School] and my colleagues in the Criminal Law department at the Judge Advocate General (JAG) school. They were incredibly helpful. And they took care of my Family!
DUNN: First and foremost, of course, was my co-counsel . . . he was very committed to doing the best he could for SGT Davis. He made himself available whenever needed for late night phone calls, given the time difference between Iraq and CONUS. Apart from him, then-SGT Davis and our investigator, then-SSG Rich Russell, were the only other people with whom I could have fully privileged conversations. That said, I had a great deal of valuable interaction and feedback from my fellow defense counsel in the case. The individual interest of co-accused can come into conflict, at least in theory. In this case, the actual conflicts were somewhat minimal. I thought that the co-accused in this case, as a group, had a great deal of common interests and were all well served by cooperation among the defense counsel. I’m sure we all had certain issues for which we had to protect our attorney-client privilege, but, overall I think most of us found that our clients’ best interests were served by sharing information and ideas.
For those involved in future high-profile cases, what tips can you share on how to balance stress?
BOSTIC: We all have a part in the organization’s mission. Figure out how you can help in ways that you are allowed. Forward progress always eases stress, no matter how much progress. Reach out to colleagues that have “been there, done that.”
MCCABE: Work hard, seek advice, and do NOT try to do it all yourself or not be willing to take advice or learn on a daily basis. It is a team effort and you have to make use of the team.
TAYLOR: If you have routines for eating, physical activity, family time, [or] work hours, don’t sacrifice them for the case.
GRAVELINE: Regular exercise was a key for me—a good three- or four-mile run always puts me back into a good state of mind. Still, the stress was very real and it was important to communicate within our team to blow off some steam and to let each other know when we just needed a night away from thinking about the cases.
TAKEMURA: Do not listen to the media. They would typically get facts wrong, intentionally or not. Put your head down and do your job. Remember why you are doing what you are doing and don’t lose focus on your role as a defense attorney.
HOLLEY: Just do the next right thing. Be aware of the outside noise, but don’t let it impact doing the right thing for the right reason in the right way. Lean on your team and take care of them, and they will take care of you. If you don’t have the right people in place, do what’s necessary to fix that quickly.
SHUCK: Don’t get distracted by the noise surrounding the case. The case is like any other case—just with more people watching. Focus on the case and, as a defense counsel, your client.
NEILL: Late at night, I would walk on a third-story patio [in a palace on Victory Base] and smoke. I don’t recommend smoking, but I think we all need some quiet time to think and reflect about our work. When I came home from Iraq, I kept smoking and tried to hide it from my wife. One night, . . . she asked if I was smoking. I said, “Of course not,” which was arguably a lie. Then she pulled out a receipt and basically impeached me with a prior inconsistent statement. I felt terrible that I was caught red-handed, but I was incredibly proud that my wife knew how to conduct a proper cross-examination.
With so many accused, how did you avoid conflicts of interest? What internal steps did you take to put up firewalls?
TAYLOR: I discussed my supervisory responsibilities of the various defense counsel with my client and was provided permission to help each defense counsel represent their client as necessary. I made sure all my military counsel knew I represented BG Karpinski. The focus of my efforts upon arrival in theater was coordinating for administrative and logistic support for each defense team.
TAKEMURA: Unless we were actively working the case or our defenses, we did not discuss what occurred at Abu Ghraib. We would eat meals together in Iraq and sometimes hang out because the initial seven accused were a world separate and apart onto themselves. No one else wanted anything to do with us, so we only had each other. After we were sent to Fort Hood, it was just my client and me. We relied on each other to get through the case together. We became a team of two and it gave both of us strength to lean on each other.
DUNN: Any client faced with a potential conviction has at least some interest in making a deal with the government in return for testimony against other co-accused. Sergeant Davis did end up making a deal and pleading guilty to some of the charges. That said, there were many points of common interest between the co-accused. One must be mindful of conflicts, obviously, but for the most part it wasn’t hard to avoid them.
SHUCK: Distance helps. Most of the other counsel were on other FOBs located throughout Iraq. The ones assigned to the case with me at FOB Victory focused on the overwhelming number of other cases we had and the nearly non-stop Article 15 and Chapter business we had.
HOLLEY: [The government] didn’t necessarily have conflicts of interest, but we very carefully used immunity to proceed on the case. And, we carefully tried to adjudicate each case on its own merits. In a related matter, we did have challenges in that we didn’t ‘own’ all the actors who would be subject to UCMJ action. Some potential accused were in other commands. In those cases, the most we could do was to recommend action to the appropriate command. This did highlight, in my mind at least, some uneven responses to accused in similar circumstances because of different convening authorities.
NEILL: In our initial batch of cases, we preferred against seven Soldiers. We negotiated a pretrial agreement early on with a generator mechanic; I thought he was the least culpable of the bunch, and he had cooperated with investigators. We had a good result with his guilty plea and other defense counsel started to talk to us about deals. One defense counsel told me, “This is just the tip of the iceberg,” which sounded even more ominous than it looks on paper. I thought he was implying that there was other detainee abuse at the prison or that other people were involved. I talked to the trial team and we decided that this accused would give me a verbal proffer, and I would question him about it. We used a technique that I saw employed at the 1st Cavalry Division when I was a defense counsel. I sat down with the accused and his attorney, and we agreed these statements were pretrial negotiations and inadmissible under Military Rule of Evidence 410. I further told them that I would take notes but would not discuss the proffer with the trial team. If the accused decided to plead not guilty, or if he pleaded guilty and there was a problem with the providence inquiry, then I would not tell the trial team anything we discussed. I think this technique is great for avoiding unnecessary issues. At the time, I was concerned about derivative evidence—if I interviewed the accused with the trial team, his answers might have impacted other cases and we would have followed up on leads from the interview. At his trial, if there were any contested offenses, we would have to show the statements from negotiation were not the source of the new evidence. This technique avoided all of these potential problems.
What challenges arose in proceedings with classified and/or restricted material?
SHUCK: I had access to classified material, but my civilian defense counsel did not. Fortunately, most material either ended up being declassified or was not relevant to the case at hand. That is, we were able to shore up a defense strategy based on the non-classified matters. What was hard to deal with was the VOLUME of discovery. There were several reports done on the case, 15-6 interviews, etc. to comb through. Doing so without a paralegal was overwhelming at times and led to significant delay in the case.
TAKEMURA: Just the sheer volume of discovery was daunting. Luckily, this was the one and only case I had for a year and could single-mindedly focus on this case.
NEILL: There were multiple investigations and follow-on investigations into Abu Ghraib detainee abuse. In my opinion, these investigations were over-classified which made our discovery obligations more difficult. We were obligated to turn over witness statements and other evidence from these investigations, and most were covered with blanket “SECRET” classifications (even when nothing in an exhibit seemed to require classification).
GRAVELINE: Classified material presented significant hurdles for our team. First, the first 15-6 officer decided to classify his entire report and attachments (including over several dozen witness statements), which made disclosure, especially to civilian defense counsel, extremely difficult. Second, given the large amount of international media interest, we wanted to ensure that as much of the court-martial process as possible would be open, public hearings. Thus, we engaged the various classification authorities early in the discovery process to conduct classification reviews and were successful in declassifying all materials used in the various courts-martial. Finally, dealing with other federal agencies with classified material (Central Intelligence Agency, National Security Agency) proved challenging, but we were able to leverage higher-level DoD support to obtain that material as well. I hope that decisions we made as the prosecution team have affected future cases. We decided to take a very expansive view when it came to disclosure. We actively sought out relevant and material documents, regardless of whether they were in our physical possession in Iraq. We strongly believed that this view was the correct way to go about the discovery process and I hope that if presented with a similar situation, trial counsel now would take a similar view of their disclosure obligations.
MCCABE: One challenge I remember, I immediately allowed full access to defense attorneys at Abu Ghraib. Logistics was an immediate challenge. Security, travel, and the like. Shortly thereafter, Office of The Judge Advocate General determined that all detainees were off limits for interviews until further notice. I had to stop allowing anyone to interview detainees or possible victims. I knew defense would have objection/motions and it had to be worked out in the court.
How do you think decisions regarding Abu Ghraib discovery affected future cases?
HOLLEY: I will say that the first substantive thing I did in my role was to meet with the defense counsel and commit to them to provide resources and information as freely as we could possibly provide. We wanted to provide investigative resources to the defense teams as well—and we did. I’m proud of that. I think serving in TDS prior to this assignment was helpful to me in a number of ways, not the least of which was understanding that an effective defense attorney is a prosecutor’s best means to ensure that justice really is done.
NEILL: As a teaching point, I think the best way to handle classified evidence is to provide it to defense counsel and then distill the evidence into unclassified material (like stipulations of expected testimony) to be admitted at trial. Counsel should work closely with S2/G2 personnel to ensure the stipulations do not contain classified material. In our cases, some interrogation techniques were still classified at the time of trial. We turned over the classified version and worked with the defense to admit unclassified stipulations. The defense was able to admit material without challenge and we avoided the logistical challenges of a classified trial.
DUNN: Dealing with classified material was a major hassle. My office in Balad did not have a SCIF [sensitive compartmented information facility]. Even if it had, I did not have a courier card to carry classified material to it from Victory Base. I did not have SIPR [Secret Internet Protocol Router Network] access either, though I’m not sure how much of the classified material was digitized anyway. I had to go to Victory Base to view the classified material. I think the government team did what they could to facilitate access, but it was an inherently difficult thing to deal with. Merely viewing the classified parts of investigations, etc., takes time. Reviewing them sufficiently for case preparation is something else altogether. It was difficult. I think we all did the best we could.
What is your most memorable experience with the Abu Ghraib cases?
TAKEMURA: Being on active duty, coming from a Reserve status was an amazing experience. The other judge advocates I met were truly dedicated, hard-working, self-sacrificing patriots. I am honored to be in the Army JAG Corps. For me, an immigrant who could not speak the language when I was adopted and brought to our great country, to now being an officer in the U.S. Army is truly humbling. Being mobilized for thirty months to finish up the court-martial was very difficult. But that was a choice I made . . . to not redeploy before the case concluded. I fully understand now, and empathize with, what it means to be a Soldier and all the sacrifices that come with it. We certainly ask a lot of our loved ones to allow us to do what we do.
NEILL: In November 2004, our SJA decided that I would redeploy early to help Mike Holley and Chris Graveline at Fort Hood. At the same time, the command decided the remaining cases (United States v. Graner, United States v. Davis, United States v. Harman, and United States v. England) would all be tried back in the States. I was part of the escort team that took back the Abu Ghraib Soldiers. We took a charter flight with other redeploying Soldiers. I remember walking through the Dallas airport in uniform and passing through a group of older men and women who were there to welcome us back. They were cheering and hugging us, many of them tearfully thanked us for our service. The other memorable moment was watching Jon Stewart talk about the Graner trial in almost real time. One day I was in court listening to the defense opening statement, and the next day Jon Stewart was quoting the opening statement on The Daily Show. It was surreal.
MCCABE: I will never forget [my NCO and I] going to Abu Ghraib and meeting with CID. We got the entire file (we copied everything once for our working file), we spent the night on two cots in a bay that was part of the prison. Kind of creepy for our first night there. But, we sat together on a cot, pulled up his laptop and went through every photo. This went late into the night . . . as we went through, we began to page through every photo to include the ones that would become infamous. We realized we had some serious issues, possible courts-martial, and our work load in military justice for this deployment just became our main effort.
BOSTIC: My most memorable experience was the weekly visits to the prison to train each Soldier on-site [about the] Geneva Conventions. This was our first task shortly after arriving and receiving the case file at the direction of our Brigade Commander.
TAYLOR: Traveling to the convention center in the Green Zone of Baghdad via a convoy of three Ford Explorers to conduct a site survey of the convention center as the site of the arraignment of the co-accused Soldiers. [Also, I remember] dealing with SGT Davis’ civilian defense counsel who ultimately traveled to Iraq for the arraignment. As we were planning his travel, he expressed a desire to go visit Abu Ghraib. When told it might not be possible, his retort was [that by himself he would] fly into Baghdad International Airport, get a hotel room, rent a car, and drive. There was a hotel in Baghdad where media and NGOs [non-governmental organizations] stayed, so maybe he could have gotten a room. The bigger problem with the plan was that Baghdad International Airport was not open to commercial flights; there was no Hertz or Avis desk at the airport and the route to Abu Ghraib was far from secure. (I fell out of my desk chair laughing when told of his retort.) Also, all of us [defense counsel] being told to bed down for the night in a gym-sized room the night before the arraignment. It was very difficult for my defense counsel and their clients to get any meaningful rest nor did they really have a private place to discuss the next day’s events.
DUNN: The whole experience was indelible. [I remember] the initial pretrial hearings in the Green Zone. That’s where I saw the media coverage in person for the first time. Plus, taking the convoy over there was memorable. [Also,] visiting Abu Ghraib, especially the cell block where the notorious “pyramid” occurred.
GRAVELINE: My most memorable experience was my first motions hearing as the trial counsel in the cases. Major Mike Holley had yet to arrive in Iraq, but we were set to hear a number of motions from the various defense counsel, so I was the only government representative present on the record. The hearing took place in the Green Zone and was covered by every major news agency with a presence in Iraq. It was during that hearing that Judge Pohl enjoined President Bush from bulldozing the Abu Ghraib prison (which the President had promised to do in a speech a few days earlier) and ordered defense counsel interviews of all members of the chain of command from the U.S. Central Command commander down to the platoon leader—all I could think of was how was I going to explain these developments to the SJA once I got back to Camp Victory!
HOLLEY: One memory, in particular, was being in the back of a C-130 flying out of Baghdad on a trip that would lead to hearings in Mannheim, Germany. I remember sitting next to Military Judge LTC Robin Hall on one side, [SPC] Charles Graner and several other accused on the other side. We were packed close together in the back of the aircraft, that green light coloring everything. A few feet away toward the rear of the aircraft was a coffin with an American Flag draped over it. Surreal. And poignant. I’ll never forget that moment.
Most positive experience?
BOSTIC: My most positive experience was as the convoy commander for the first case we prosecuted. We traveled in a Rhino with tactical platforms. Judge, prosecutor, defense, escorts—all in a convoy headed to the heart of Baghdad to set up a ‘courtroom’ and conduct a trial.
TAYLOR: [I remember] traveling to and from the convention center via a convoy in a Rhino (up armored Winnebago) with the co-accused thinking ‘this is one big target!’
SHUCK: The professional challenge. Dealing with complex, challenging, and interesting facts, witnesses, crime scenes, and law.
TAKEMURA: This case reinforced my belief that there are always two sides to a story. One can never judge by initial appearances. Always ask questions, and don’t be afraid to fight like crazy for your client. Even when the odds are against you, keep at it and keep trying. I remember filing several pre-trial motions to dismiss some of the charges and specifications. While I was preparing the motions, when I was able to consult with others, several colleagues told me not to waste my time. After the hearing, Judge Pohl granted some of my motions and dismissed several charges and specifications. My client went from looking at a maximum incarceration of seventeen years to five and a half years when we started the court-martial. Judge Pohl gave me back a sense of justice, fairness, and always striving to do the ‘right thing,’ no matter the odds. I cannot even begin to know the pressures Judge Pohl had during these cases, but he focused on the law and was very courageous in his rulings. As long as everyone does their job, the right result will be reached.
HOLLEY: Sitting at a picnic table at the makeshift post exchange at the end of a long day drinking hot Gatorade with Butch Tate. And laughing.
NEILL: I think the best part was learning from two great SJAs and some extraordinary trial attorneys. We had two SJAs during our deployment—COL Karl Goetzke and then-COL Butch Tate. Both were patient and thoughtful and encouraged me to make decisions about military justice actions. The JAG Corps talks a lot about underwriting risk—both of our SJAs empowered their people. I was very proud that everyone expected us to follow the evidence wherever it might take us. I never felt pressured to curtail interviews or limit follow-up questioning. To the contrary, I knew every member of the SJA office expected us to get to the ground truth.
GRAVELINE: The continuing friendships we developed within the prosecution team. None of us had ever worked together before and many of us had never even met each other prior to being brought together in Iraq. We immediately meshed and have remained close friends over the years.
DUNN: I valued the sense of collegiality that reigned among the defense counsel for all the accused. I can’t speak for everyone else, but from my perspective, we cooperated very well when we could do so in our clients’ best interest. There were some great people representing the other co-accused, both military and civilian counsel. Collectively, I liked the co-accused as well. I won’t editorialize, but I will say, that whatever one thinks of the incidents at Abu Ghraib, knowing all of the accused as real people tempers one’s perspective.
BOSTIC: [The] embarrassment that this incident caused and how some believe a few attacks on U.S. personnel happened because of the misconduct.
TAYLOR: After the cases transferred to Fort Hood, getting all five military defense counsel back to CONUS in a timely fashion [was a challenge].
DUNN: The media firestorm. It didn’t affect me directly, but it’s frustrating to see extensive coverage of a case when you’re acutely aware of every error made by the reporters, and there is so much incendiary and tendentious political commentary related to it.
SHUCK: Concerns from folks that TDS counsel were not going to be aggressive advocates because of [our] status as U.S. Army Officers. Nothing could be further from the truth. Our job was to focus on our clients’ interests—not the U.S. government’s interests in the war.
MCCABE: The misunderstanding of the events as portrayed in the media and in some historians’ books. Just two years ago, I was at a book presentation at the Pentagon where the author spoke about the futility/ineffectiveness of military/government/intelligence branch support for certain interrogation techniques. Part of his presentation included Abu Ghraib photos and data from Abu Ghraib. I felt compelled to discuss with the author that in no way were these events government-sanctioned events and these were independent criminal activities. Perhaps the photos helped him sell books, but this did not reflect government-approved techniques. One other negative from back in 2004 was my thought that some generally good Soldiers got mixed up in some events that would not be typical for them. I’m not sure what drove them to some of these events, but some I felt a bit sorry for them because I thought a few were good people that did some bad things. So, I was sorry that we had to prosecute these events—but, of course, it was the right thing to do.
NEILL: Looking back, I wish I had shared more with my team. During the Davis court-martial, I was the media liaison. I provided read-aheads to the press pool, sat through the trial, answered questions during recesses, and worked closely with our public affairs office. My wife had a miscarriage during that trial, and I didn’t tell anyone about it. We grieved privately, and I think that was a mistake.
What thoughts can you share to benefit paralegals, JAs, or TAL readers if they find themselves in the middle of a high-profile case?
TAYLOR: These cases are marathons. Pace yourself personally and professionally. From the perspective of the government, have a theory of the case and stick to it. Be prepared to fully support the defense function. Because the case will take a significant amount of time to conclude, don’t take things personally.
TAKEMURA: Keep your head down. Remember the Army values and remember your mission.
BOSTIC: We are a unique team, trained to proficiency. We learn from our experiences and knowledge. We need to keep sharing and understanding why we do what we do.
HOLLEY: There’s a time to stay with the playbook and sometimes there is a time to depart from it. Someone wise made the call early on that these cases were going to require additional help. They were right. Sometimes it makes sense to apply extra resources for certain situations. Spend those resources for officers, NCOs, equipment, facilities, investigators, etc. The other key component is leadership. I’m not sure you can effectively execute a successful prosecution in a high-profile, complex case or cases without the right SJA. The system is not built to operate without that key player in place and steering the ship. We were so fortunate to have Butch Tate at the helm. The value of competent and well-resourced defense attorneys cannot be overrated. We had them in this case by and large. Lastly, I would just reiterate the need to do the right thing for the right reason. Money, fame, and power all tend to deflect a moral compass. Be aware of that. Resist it. Stay the course.
MCCABE: Trust your team, do not act different—for the most part, and take it on as any other case. There may be some special considerations, of course, but what works for the routine usually works for the high-profile case. So, trust your instincts and training and be deliberate. Use backward planning to war game your decisions and their implication on future events.
DUNN: Try not to let the stupid, uninformed, or agenda-driven commentary distract you. Media coverage may provide a basis for unlawful command influence motions or other information relevant to the case, [b]ut paying attention is one thing and getting distracted by potentially unfair or inaccurate representations is something else. At the end of the day, the case will be decided in a courtroom, in a GCMCA’s office when final action is taken on the case, and perhaps ultimately in an appellate court. Those are the venues to consider.
SHUCK: Yes, it is a ‘big’ case. Yes, there are more folks interested in it. It is still a case that uses the same Manual for Courts-Martial. Focus on the task at hand and, to the best of your ability, ‘ignore the noise.’
What role did Abu Ghraib play in shaping your future career decisions?
TAKEMURA: In many ways it deepened my passion for the Army JAG Corps, criminal defense work, and the absolute total dedication that true defense attorneys have. In another way, I was very disappointed that a member of my chain of command at Fort Hood did not provide me with support that I needed as a defense counsel in order to zealously represent my client. However, I realize it was just one leader and that most of the JAG leadership was, and is, amazing.
HOLLEY: In a number of ways, but primarily it cemented my view of what a prosecutor should be and do. By that I mean that a prosecutor should take overall responsibility for obtaining a just outcome in a situation. This means providing the defense with the necessary tools to do their job. It also means not under- or over-prosecuting cases. It means getting to the right result in spite of any external pressures. The experience also taught me that pressure and stress can be managed, that public service is a high calling, and that the rule of law has to be both defended and honored.
BOSTIC: Not so much career decisions, but [my Abu Ghraib experience] enabled me as a leader to always stay engaged in my organization and to support [my] leaders. In my opinion, most of what happened there was due to an absence of leaders and mismanaged priorities. Yes, more leader visits for such a significant mission would have possibly prevented much of the misconduct.
NEILL: No one gets advance notice of a high-profile case. Much like life, high-profile cases are unpredictable and spring out of nowhere; counsel have to nimbly react. Even the most-mundane case is a learning opportunity and a chance for critical self-assessment. More important, every counsel should be talking about cases and developing an internal compass. I believe it is much easier to do the right thing in a high-profile case when you’ve already become accustomed to doing the right thing in other cases. I turned twenty-nine during the deployment. I had only been out of law school for five years when I started working on the Abu Ghraib cases.
SHUCK: I ended up remaining on active duty and trying to specialize, as much as one could do during my time in the JAG Corps, on criminal justice. I also requested to deploy to Iraq in 2008 as a brigade judge advocate with the 1st Armored Division. I felt I needed a different wartime experience, one that saw the very best of America’s Army everyday rather than its criminal side. [It was the] most rewarding and therapeutic thing I ever did in my career.
DUNN: Professionally, both as an attorney and as a Soldier, it was a very interesting experience. I don’t mean to sound insensitive to the effect of the prosecutions on SGT Davis or any of the other co-accused. I wish things had gone better for all of them. But from a purely professional perspective, the case in some ways exemplified that uniqueness of military legal practice. I can’t imagine having a comparable experience as a civilian attorney, with the exception of certain positions in the Department of Justice. A fair number of JAGs ended up touching some aspect of the Abu Ghraib cases, and many of my peers got to work on other high-profile, newsworthy cases stemming from the Global War on Terror. It’s fair to say that we participated in history.