updated 5/20/2004 3:25:57 PM ET 2004-05-20T19:25:57

It is the “defense of superior orders,” in the jargon of military justice.

It didn’t work for the Nazis at Nuremberg, or for Army Lt. William Calley, who claimed he was just following orders when he directed the My Lai massacre during the Vietnam War.

But it could help the Army guards accused of abusing Iraqis inside the Abu Ghraib prison avoid long sentences, and just might get them off the hook entirely, if they can prove there were such orders and establish who gave them, experts in military justice say.

“The defense of superior orders is no defense if the accused knows the act is illegal,” explained Michael Noone, a retired Air Force colonel and military attorney. Soldiers are required to disobey unlawful commands, he said, but the “big issue is going to be whether or not the order was obviously illegal.”

Pictures taken of nude Iraqis being sexually humiliated in the same prison where Saddam Hussein’s regime tortured thousands of opponents have infuriated America’s enemies and allies alike. President Bush characterized the abuse as the failings of a few renegade soldiers and promised that those responsible will be quickly punished.

One guard said superiors were unaware
One of the seven guards, who tearfully pleaded guilty in Baghdad Wednesday and will testify against the others, has said that the mistreatment was not authorized by superior officers. “If they saw what was going on, there would have been hell to pay,” Spc. Jeremy C. Sivits told military investigators.

But most of those accused say they were just following the orders of intelligence officers and civilian contractors who told them to humiliate the prisoners and thereby make them more willing to reveal information.

In letters home to his family, Staff Sgt. Ivan L. Frederick said that he was told “this is how military intelligence wants it done,” and that when he questioned his battalion commander about the harsh inmate conditions, he was told “to do as he says.”

The treatment of prisoners at Abu Ghraib “was being controlled and devised by the military intelligence community and other governmental agencies, including the CIA,” said Guy Womack, an attorney for Spc. Charles Graner Jr., who was arraigned in Baghdad along with Frederick and Sgt. Javal Davis. “There’s going to be plenty of evidence that they orchestrated all of this.”

The defense just might work, said Tim Naccarato, the former chief of the criminal law division of the Army’s Judge Advocate General School.

Criminal intent could be key issue
“If these lower-ranking military policemen can make the case they were told to do these things, instructed to do these things, they were cooperating with intelligence to soften up these prisoners so they would provide more information, they have the ability to be found not guilty based not so much on ‘I was following orders’ but based on the theory that a criminal act requires not only an act but criminal intent,” Naccarato said.

Some members of Congress want to investigate whether the Bush administration erected a legal foundation that opened the door for the mistreatment by announcing in 2002 that al-Qaida detainees did not qualify for protection by the Geneva Conventions, which prohibits mistreatment.

Defense Secretary Donald Rumsfeld dismissed that assertion as “garbage,” but Sen. John Warner, R-Va., chairman of the Senate Armed Services Committee, insisted that questions remain about “how those in positions of responsibility either ordered, encouraged or authorized — or maybe looked the other way.”

The superior orders defense will be extremely difficult to assert in the courts-martial because the accused must prove who gave them the orders.

“Certainly, the lawyers they’re going to have their work cut out for them,” said Eugene Fidell, a defense attorney and president of the National Institute of Military Justice.

Defense could reduce prison time
Military law experts could not recall a single case in which the superior orders defense completely cleared a defendant, but said it often works to reduce prison time.

“It may not absolve you, but it would certainly mitigate what you’ve done,” said David Sheldon, a former Navy attorney.

Davis, 26; Frederick, 37; and Graner, 35, face charges along with Spc. Megan M. Ambuhl, 29; Pfc. Lynndie R. England, 21; and Spc. Sabrina Harman, 26.

Graner can be seen grinning broadly behind a pile of naked Iraqis in one photograph; others show England holding a naked prisoner by a dog leash and Ambuhl posing with detainees on leashes. Harman is seen smiling over a pile of naked prisoners. Davis is said to have stepped on the toes and fingers of prisoners. Frederick is accused of forcing prisoners to masturbate and form naked human pyramids.

Sivits, 24, took some of the most explosive photographs. He pleaded guilty to four reduced abuse charges — the equivalent of misdemeanors — and is expected to testify against others.

The following-orders defense, also known as the Nuremberg defense, got its modern-day start in 1945, after some of the 22 Nazis indicted for war crimes claimed they were carrying out orders during Germany’s decade-long drive to kill millions of Jews. Eleven were sentenced to death, three were acquitted and the others were sent to prison.

Following orders defense failed Calley
In Vietnam, the defense did not help Calley, who was sentenced to life in prison in 1971 for ordering his Charlie Company to kill everyone in the village of My Lai. Still, some believed he was made a scapegoat for an undisciplined Army, and President Nixon ordered him released after three years.

The defense may be more successful in the prison-abuse scandal than in cases involving genocide or murder. There is no dispute that murder is wrong, and that an order to commit murder would be an unlawful order. But laws governing proper interrogation tactics are more open to interpretation.

It is unclear whether fellow soldiers on the court-martial juries would be sympathetic toward the accused. Many serving in Iraq may blame the scandal for making their tour more dangerous.

Then again, they also know how hard it can be to disobey a potentially illegal order, said David Sheldon, a Washington-based military attorney.

“Ask any American what the Geneva Convention requires in the gray area of intimidation, or ask a young, unsophisticated private guarding a prison while their buddies on the outside are being shot,” Sheldon said. “You’re going to do exactly what these people did if told to.”

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