CAAF and Abu Ghraib

CAAF has decided two cases related to Abu Ghraib:  United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

The appellant also admitted taking photographs and taking other actions over a period of time.

Smith involved allegations of error that the military judge failed to give proper instructions on a defense of obedience to orders.  The case is valuable for the question of a judge’s sua sponte duty to instruct and the amount of evidence necessary to require an instruction.

“Obedience to lawful orders” is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised. See United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d); R.C.M. 920(e)(3).

“The test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.”  Davis, 53 M.J. at 205.

A lawful order instruction would have been required only if the order given had been lawful or could reasonably have been believed to be lawful. See United States v. Calley, 22 C.M.A.
534, 544, 48 C.M.R. 19, 29 (1973).

Both cases have a good discussion of maltreatment and the standard of proof and type of evidence necessary for conviction.  Smith holds that a detainee, while not himself subject to the UCMJ in traditional terms as a civilian, is “subject to the orders” of the accused.  CAAF cited to the various Geneva Conventions to support this proposition.

Judge Efron notes an important point for both sides at trial, but most importantly the defense.

Appellant raises claims now that he did not make at trial. The record contains no instructions proposed by the Appellant. Appellant did not object to the military judge’s
instructions as given.

As I frequently say, many a good appellate issue is lost because the trial defense counsel did not make a record.  There are times when strategy may require doing or not doing something at trial, for example an objection.  Not objecting potentially waives the issue absent plain error.  That’s fine and consistent with the principle that you want to win at trial and do not litigate for appeal.  But when it comes to instructions, that’s an area for action and creativity.

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