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Law
Watch - Detainees
Abu Ghraib Court Martial: Specialist Megan Ambuhl, USA
Steven C. Welsh, Esq.,
swelsh@cdi.org,
www.cdi.org/news/welsh/
Army Specialist Megan Ambuhl has become the third military
police reservist and fourth U.S. soldier convicted over Abu Ghraib prisoner
abuse. For standing by while abuse occurred and failing to intervene or report
it, Ambuhl was convicted on Oct. 30, 2004, of dereliction of duty and sentenced
to reduction in rank to private and loss of a half-month’s pay.
Additional charges brought against Ambuhl but dropped under
the pretrial agreement had included allegations of conspiracy, maltreatment, and
indecent acts. In addition to having the charges reduced, Ambuhl was subjected
to a summary court martial under which any imprisonment that might have been
imposed would have been limited to thirty days.
Ordinarily the summary court martial, limited to enlisted
personnel, is reserved for minor disciplinary offences, in contrast to the
potentially more punitive special court martial and general court martial.
At a background briefing in May 2004 prior to the first Abu Ghraib court
martial, a senior military lawyer explained:
The summary court martial. Maximum
punishment is 30 days. Officers don’t go to summary court martials, because,
one, they can’t be confined in a summary court martial. It’s generally
considered for minor disciplinary-type procedures, minor military-type offenses;
UA, unauthorized absence, for example, smart-mouth at your commander, et cetera.
Senior Military Lawyer, “Background Briefing – Uniform Code
of Military Justice and Court Martial Procedures,” DoD News Transcript, May 19,
2004,
http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html
Ambuhl reportedly was present during sexually humiliating
abuse including the formation and photographing of a human pyramid of nude
detainees, and was partially visible in a photograph of Pfc. Lynndie England
holding a leash attached to a nude detainee. At the same time, several
detainees reportedly praised Ambuhl for treating them humanely, and she
apparently came to the aid of a detainee who had difficulty breathing after
being punched by another soldier.
Dereliction of duty, the sole remaining charge against
Ambuhl, is governed by Article 92 of the Uniform Code of Military Justice (UCMJ)
governing the failure to follow orders or obey regulations:
Any person subject to
this chapter who--
(1) violates or fails
to obey any lawful general order or regulation;
(2) having knowledge of
any other lawful order issued by any member of the armed forces, which it is his
duty to obey, fails to obey the order; or
(3) is derelict in the
performance of his duties;
shall be punished as a
court-martial may direct.
Because it was Ambuhl’s
duty to intervene to stop the prisoner abuse, her failure to do so was akin to
disobeying orders.
While admitting the wrongfulness of Ambuhl’s failure to
intervene, Ambuhl’s attorney also has argued that she neglected to report the
abuse because of the involvement of superiors and military intelligence
personnel.
Thus far, all four Abu Ghraib prosecutions have resulted in
plea bargains and three have been brought under either a summary court martial
or special court martial, with only former Army Staff Sergeant Ivan Frederick
being subjected to a general court martial, resulting in an eight-year prison
sentence.
Remaining Abu Ghraib courts martial include those of Pfc.
England, scheduled to stand trial Jan. 17, 2005, Specialist Charles Graner,
whose trial is set to begin Jan. 7, 2005, and Sgt. Javal Davis, who goes on
trial starting Feb. 1, 2005.
Sources and further reading:
“Abu Ghraib Article 39A Hearings Held in Germany,” Armed
Forces Press Service, Aug. 25, 2004,
http://www.defenselink.mil/news/Aug2004/n08252004_2004082503.html
“Abu Ghraib guard agrees to plea bargain,” UPI, Nov. 2,
2004,
http://washingtontimes.com/upi-breaking/20041102-074621-6323r.htm
Will Dunham, “Soldier Pleads Guilty in Abu Ghraib Scandal,
Reuters,” Nov. 3, 2004,
http://olympics.reuters.com/newsArticle.jhtml?type=topNews&storyID=6695812
Estela I. Velez Pollack, “Military Courts Martial: An
Overview,” Congressional Research Service Report, Order Code RS21850, May 26,
2004,
http://www.fas.org/man/crs/RS21850.pdf
Senior Military Lawyer, “Background Briefing – Uniform Code
of Military Justice and Court Martial Procedures,” DoD News Transcript, May 19,
2004,
http://www.defenselink.mil/transcripts/2004/tr20040519-0785.html
10 USC §892, UCMJ Article 92,
http://www.au.af.mil/au/awc/awcgate/ucmj2.htm#892.%20ART.%2092.%20FAILURE%20TO%20OBEY
%20ORDER%20OR%20REGULATION
Josh White,
“Guilty plea by soldier spares her prison term,” The Washington Post,
Nov. 3, 2004,
http://www.boston.com/news/world/middleeast/articles/2004/11/03/soldier_pleads_guilty_to_failing
_in_duty_at_abu_ghraib/.
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