This Court Martial record (volume 2 of 8) discusses the court martial proceedings of Staff Sergeant Ivan L. Frederick, II, who was charged for offenses he committed while assigned to the Abu Ghraib Detention Facility on or about November 08, 2003. SSG Frederick was arraigned and charged with a number of offenses, including maltreatment of subordinates, conspiracy, dereliction of duty, assault, and wrongful commission of an indecent act with detainees. Included in this volume is the trial transcript.
COURT-MARTIAL RECORD
NANIE FR6.D6RzcK LvAn) L. ir SSG
SSN
ACTIONS CODED: ASSIGNED 14): INITIAL PANEL ACCA EXAIV1. DIV. FINAL COMPANION(S):
•RETURN.THIS FILE TO:
OFFICE•OF THE CLERK OF COURT . US:ARMY JUD [MARY 904 NORTH • STUART STREET,. SUITE. •120G
• ARLINGTON,. VA. 222034837
VOL al-OF= VOL(S)
ARMy 20041129
-a
JALS-CC FORM 24, tOCTOBER 2000
018157
VOL rrof
ORIGINAL COPY
VERBATIM'
RECORD OF TRIAL2
(and accompanying papers)
OF
FREDERICK, Ivan L., II Staff Ser eant
(NAME: Last, First Middle Initial) (Social Security Number) (Rank)
HHC, 16th M.P Bde (ABN)
III Corps US Army Victory Base, Iraq
(unit/Command Name) (Branch of Service) (Station or Ship)
BY
GENERAL cOURT-MARTIAL
CONVENED BY COMMANDING GENERAL (Title of Convening Authority)
Headquarters, III Corps (Unit/Command of Convening Authority)
TRIED AT
Baghdad and 'Victory Base, Iraq
ON 19 May, 21-22 Jun; 24 Aug;
20-21 Oct 4)4
(Place-or Places of Trial) (Date or Dates of Trial)
COMPANION CASES:
SPC AMBUHL, Megan M., di(ei(-71e) -2-
SGT DAVIS, Javal S.,
SPC GRANER, Charles A., Jr.
SPC HARMAN, Sabrina D.,
SPC SIVITS, Jeremy C.
SPC CRUZ, Arman J.,
-13
PFC ENGLAND, Lynndie R.
C7.)
Pkt-.
transetipf R.1.99
I Insert "verbatim" or summarized" as appropriate. (This form will be used by the Army and Navy for verbatim records of trial only.)
2 See inside back cover for instructions as to preparation and arrangement.
DD FORM 490, OCT 844 Previous editions are obsolete. FRogrgtsi. 5 8
20041 12 9
RECORD OF PROCEEDINGS OF COURT-MARTIAL
018150
DOD-041338
ERRATA SHEET
United States v. FREDERICK,III
Ivan L.,I
Military Judge: Trial Counsel: Defense Counsel: Court Reporters:
b 'C7_10)7 MAJI(09) 2 -C-; mr . 04?...)-Y0A64
JM
kI
COL . CPT Cb) 7(ei CPTIb)6,-2'7c-i. giga
Location
Page Line CHANGE Initials of
# # FROM TO Court
Reporter
r 1-1. Av 1411.-M' C.
,
Ai
0:40 IMO /
COL
DATE:
018160
FREDERICK Ivan L. II
(Name: Last, First, Middle Initial)
HIIC, 16th MP &le (ABN) III Corps
(Unit/Command Name)
Baghdad and Victory Base, Iraq
(Place or Places of Trial)4
INDEX Article 39(a) Sessions Introduction of Counsel Challenges Arraignment Motions Pleas Prosecution Evidence Defense Evidence Instructions on Findings Charge(s) dismissed Findings Prosecution Evidence Defense Evidence Sentence Appellate Rights Advisement Proceedings in Revision
1
RECORD OF TRIAL
OF SSG
(Social Security um er (Rank)
U.S. Army Victory Base, Iraq
(Branch of Service) (Station or Ship)
BY
GENERAL COURT-MARTIAL
Convened by: Commander
(Title of Convening Authority)
Headquarters, III Corps (Unit/Command of Convening Authority)
Tried at
on 19 May, 21-22 Jun; 24 Aug; 20-21 Oct 04
(Date or Dates of Trial)
RECORD R-2/13/34 R-2/13/34 R-N/A R-8 R-13 R-256 R-261 R-NA R-NA R-NA R-378 R-381 R-400 R-611 R-608 R-NA
018161
TESTIMONY
DIRECT/ CROSS/ COURT NAME OF WITNESS REDIRECT RECROSS
PROSECUTION:
(6X) -(7.k)--ti 382 392
DEFENSE:
a,e-C 7(4) -
SFC 1111116 (b,),J -7cc. )(2) 42/53 50 MAJ eg4)- -7(e53/81 71 Unsworn Accused) - -400 CPT
e o.) -7 - -7_ 457/484 470/485CW2 (bt4) — '7(1c) -487 494 496 504 510 513 514 521 537 541/575 562
COURT:
None. EXHIBITS ADMITTED IN EVIDENCE
NUMBER OR
PAGE WHERE LETTER DESCRIPTION
OFFERED ADMITTED
1 Stipulation of fact
261 267 2 Accused's ERB
398 398 3 Buckingham Prison training records 399 399 4 PLDC training records 399 399 5 Excerpt of AR 15-6 investigation 399 399 6 Code of conduct
508 508 7 FID Closing argument slides [Not R.6021
A Stipulation of expected testimonVUIIIIp(-6Voi -11) (WW.) -ti 441 448 Stipulation of expected testimony 441
448 Stipulation of expected testimony 441
448 Email
441 453 Interrogator notes
442 453
018162
F Handwritten letter 442 453 G Psychology consultatio 442 454 H Resume of
442 454
I
443 454 J ita -443 454 K AR 15-6 Investigation/Fay 443 454 L Good soldier book 443 520 M AR 190-8,.pages 1 through 31 520 520
APPELLATE EXHIBITS f
1 Email of appearance (Mr.4111111 C6-6)--(ite--0017( . 13 II Motion for appropriate relief telephone appearance by civilian counsel 14 III(00)-2;4)2Emnil from COL to Mr. Ills denying request (6) 6 -41 4) '4) 4z 14 IVO)6-2; ZO -2-Email from COL setting next motions hearing date of 22 July 34 . Email from Mr:1111111:s waiving appearance at motions hearing (4-i-s//40-it34 VI Motion for appropriate relief reo en Article 32 Investigation 38 VII Email from CPA". to CPT , dated 28 April 2004 (6_,r6) 2 - 7(6 --39 VIII Article 32 investigation, U.S. v. Frederick 40 IX Verbatim transcript of Article 32 transcript 40 X Government's response to defense motion to reopen Art 32 Investigation 42 XI Written findings of fact 162 XII Request for expert assistance 162 XIII Request for discovem dated 16 May 2004 164 XIV Email from CPT to CPT , dated 3 May 2004 164 XV Email from CPT to CPT , dated 4 May 2004 0 6 -2 -(6. 1 ,k)2.164XVI Email from CPT to CPT , dated 27 May 2004, 164 XVII Request for discovery, dated 17 May 2004 164 XVIII Court order to prospective court members 175 XIX Order denying motion to move trial 180 XX 7Motion for reconsideration of court's decision 180 XXI Hold harmless agreement 187 XXII Motion for appropriate relief 215 XXIII Motion to compel employment of an expert witness 235 XXIV Request for military judge alone 249 XXV 7Offer to plead guilty 362 XXVI Quantum portion 362 XXVII Post-trial and appellate rights 608
018163
PROCEEDINGS OF A GENERAL COURT-MARTIAL
The military judge called the Article 39(a) session to order at
4 1015, 19 May 2004,, pursuant to the following orders:
5
6I
Court-Martial Convening Order Number 1, Headquarters,
7 III Corps, Victor lBse,Irlaq, dated 14 January 2004, as amended by
8 Court-Martial Convening Order Numer 3, same headquarters, dated
9 8 March 2004.
10 [END OF PAGE]
1 4 018164
DEPARTMENT OF THE ARMY
Headquarters, III Corps
Victory Base, Iraq
APO AE 09342-1400
COURT-MARTIAL CONVENING ORDER 8 March 2004
NUMBER
3
The following personnel are detailed as members of the general court-martial convened by Court-Martial Convening Order Number 1, this headquarters, dated 14 January 2004:
COL SC, HHC, 3d Sig Bde COL , HQ, 13th COSCOM COL SC, HHC, 3d Sig Bde (4J(0-z (i)(c.)
VICE
CO C, HHC, III Corps
CO AR, HHC, III Corps
MAJ4 , AR, HHC, III Corps
Relieved permanently.
BY COMMAND OF LIEUTENANT GENERAL METZ:
DISTRIBUTION:
Each individual indicated (1) CPT, JA
Cdr, Ill Corps (SJA) (1)
Chief, Criminal Law Division Record Set (1)
Reference Set (1)
018165
There were no Court-Martial Convening Orders published for calendar year 2003.
DEPARTMENT OF THE ARMY
Headquarters, Ill Corps
APO AE 09342-1400
COURT-MARTIAL CONVENING ORDER 14 January 2004NUMBER 1
A general court-martial is convened with the following members:
CO ., MI, 504th MI Bde COL CM, HHC, Ill Corps CO HHC, III Corps COL QM, HHC, III Corps CO, A. : HHC, Ill Corps LT , TC, HHC, Ill Corps LTC SC, HHC, Ill Corps LT D, HHC Corps MAJ J., AR, HHC, III Corps MAJ MS, HHC, Ill Corps
In ttie event an accused requests that the membership of the court-martial include enlisted persons, the following rOmbers are detailed to the general court-martial convened by this order:
MEMBERS
CSM HHC, III Corps
CSM 504th MI Bde
(4)z)(617169J-z
SGM HHC, Corps MSG HHC 89th.MP Bde MSG HHC, 3d Sig Bde
VICE
COL CM, HHC, Ill Corps COL , QM, HHC, Ill Corps LTC HHC, III Corps LTC AD, HHC Corps MAJ AR, HHC, Ill Corps
Relieved only for trials in which an accused requests that the membership of the court-martial include enlisted persons.
BY COMMAND OF LIEUTENANT GENERAL METZ:
111111111111.111111
DISTRIBUTION:
Each individual indicated (1) MAJ, JA
Cdr, Ill Corps (SJA) (1) Chief, Criminal Law Division
018166
1 IMJ: Court is called to order.
I
2
TC: This court-martial is convened by Court-Martial Convening
3 Order Number 1, Headquarters, III Corps, dated 14 January 2004, as
4 amendea by Court-Martial Convening Order Number 3, same headquarters,
5 dated 8 March 2004, copies of which have been furnished to the
1
6 militaty judge; 'counsel and the accused and which will be inserted at
7 this p t in the record. The charges have been properly referred to
8 this court for trial and were served on the accused on 7 May 2004.
9I
The prosecution is ready to proceed with the arraignment of
10 United States versus Staff Sergeant Ivan L. Frederick II.
11
The accused.and the following persons detailed to this
12I
court ar.1 present:
13ICOLONELAIIIIM, MILITARY JUDGE;
CzAJ-2,7Jc-
14 ICAPTAIN 111111.11., TRIAL COUNSEL;
I
15 CAPTAINIIIIIIIIIIIIII, ASSISTANT TRIAL COUNSEL; and
I
16 CAPTAIN'S...111111 DEFENSE COUNSEL.
I
17 The members are absent.
18I
Sergeant n has been detailed
19 reporter for this court and has been previously sworn.
,
20I
All members of the prosetution have been detailed to this
21 court-martial by CaptainI
Chief of Military Justice, 22 III Corps. We are qualified and certified under Article 27(b) and 2I018167
1 sworn under Article 42(a), Uniform Code of Military Justice. We have
not acted in any manner which might tend to disqualify us in this
3 court-martial.
4I
MJ: Sergeant Frederick, you have the right to be represented by
(6,(4)Z-NO.e.)-2_
5 Captaingillill your detailed military defense counsel. He is
6 provided to you at no expense to you. Do you understand that?
7I
ACC: [While standing.] Yes, sir.
8I
MJ: Sergeant Frederick, you can be seated unless we tell you to
9 stand, okay.
10IACC: Yes, sir.
11IMJ: You also have the right to request a different military
20I
12 lawyer to represent you. If the person you request is reasonably
13 available, he or she would be appointed to represent you free of
14 charge. Now, if your request for this other military lawyer were
15 granted, however, you would noehave the right to keep the services
16 of your detailed defense counsel because you are entitled to only one
17 military lawyer. Now, you may ask Captai uperiors to let
18 him stay on the case, but your request woul ilot have to be granted.
19 Do you understand that?I 1.(bi Pi c -
ACC: Yes, sir.
21I
MJ: In addition, you have the right to be represented by a
22 civilian lawyer. The civilian lawyer would have to be provided by
3
I018163
1 you at no expense to the government.IIf you are represented by a
2 civilian lawyer,Iyou can also keep your military lawyer on the case
3 to assist your civilian lawyer.IOr, you could excuse your military
4 lawyer and be represented only by your civilian lawyer. IDo you
5 understand thatj
6 ACC:IYes,Isir.
7 MJ:IDo you have any questions about your rights to counsel?
8 ACC:INo,Isir.
9 MJ:IBy whom do_you wish to be represented? (.6*.)-Z ;) 7e) (.5_6) --9/b)(Zej
10 ACC: Captain and Mr.I,Isir.
11 MJ:ICaptainIMININIt your detailing and qualifications on the
12 record,Iplease.
13 DC:IYes,Isir.II have detailed myself to this court-martial as
14 Senior Defense Counsel,IU.S. Army Trial Defense Services,IBaghdad,
15 Iraq Field Office.II am qualified and certified under Article 27(b)
16 and sworn under Article 42(a),IUniform Code of Military Justice.INo
17 member of the defense has acted in any manner whict. might tend to
18 disqualify us in this court-martial.
cop -17
CaptainI
20 DC:IYes, sir,I
19 MJ:Ihave you been in contact with
I have.
21 MJ:I
Do you have a letter of appearance from him?
22 DC:Isir,I
No, not--not at present.
I
4
(a).4, )1(e)-y
018163
4
1 MJ: Okay.
I
2 DC:. We did an 802, Your Honor.
I
3 MJ: He sent you an email?
I
4 DC: Yes, sir. He sent it to all parties, including the
5 military judge, sir.
6I
MJ: Okay. No, I've received that email from him, I just have
7 misplaced it. When we find it, we'll make it an exhibit at the next
8 hearing.
DC: Yes, sir.I
9Iat4)--zo-o,07--)1
10IMJ:. Sergeant Frederick, you've actually hlred Mr.0111111, is
11 that correct?
12I
ACC: Yes, sir.
(,)- Yi
13 MJ: Okay, so you want Mr. 011111and CaptainI
(6)067-V.
14I
ACC: Yes, sir.
15I
MJ: Nobody else?
16I
ACC: No, sir.
17I
MJ: I've been properly certified, sworn, and detailed to this
18 caurt-martial. Counsel for both sides appear to have the requisite
19 qualifications and all personnel required to be sworn halve beer,
20 sworn.
I
21 Trial counsel will announce the general nature of the
22 charges.
5I018170
1ITC: The general nature of the charges in this case is
2 conspiracy to maltreat detainees, dereliction of duty, maltreatment
3 of detainees, assault, aggravated assault, and indecent acts.
6 We)
-
4IThe charges were preferred by CaptainI-and
5 forwarded with recommendations as to disposition by Colonel
I
6 7
7IThe Article 32 investigation was conducted on 2, 9, and 10
8 April 2004.
9IYour Honor, are you aware of any matter which might be a
10 ground for challenge against you?
11IMJ: Not at this time, but I will put on the record in this
12 case, as I will do in every case, is that I'm the military judge
13 scheduled to be the judge in at least four of theseicasis. All
14 parties, I'm assuming, are aware of that. At this point, my only
15 involvement so far has been the arraignment of one co-accused, which
16 I did 10 minutes ago. But, I put that on the record for both sides,
17 if later on you wish to question or challenge me, but at this point,
18 are there any questions or challenges?
19I
TC: No, sir.
20I
DC: No questions or challenges at this time.
I 018171
6
1IMJ: And understand, defense, is that it is preserved in case an
2 issue comes up later on if you want to question and/or challenge me.
3 Do you understand that?
4I
DC: Yes, sir.
5I
MJ: Sergeant Frederick, you have the right to be tried by a
6 court composed of at least five officer members, that is, a court
7 composed of commissioned and/or warrant officers. Also, if you
8 request to be tried by a court consisting of at least one-third
9 enlisted members, but none of those enlisted members could come from
10 your company and no member of the court would be junior in rank to
11I
you.
12IDo you understand what I've said so far?
13I
ACC: Yes, sir.
14I
MJ: Now if you're tried by court members, the members will vote
15 by secret, written ballot and two-thirds of the members must agree
16 before you could be found guilty of any offense. And if found
17 guilty, two-thirds must also agree in voting on a sentence. And if
18 that sentence included confinement for more than 10 years, three-
19 fourths would have to agree.
20IDo you understand that?
21I
ACC: Yes, sir.
7 I018172
1IMJ: You also have the right to request a trial by military
2 judge alone. And if approved, there will be no court members, and
3 the judge alone will decide whether you are guilty or not guilty, and
4 if found guilty, the judge alone will determine your sentence. Do
5 you understand that?
6I
ACC: Yes, sir.
7I
MJ: Do you understand the difference between the various types
8 of trials?
9 ACC: Yes, sir.
10 MJ: captaining' do you wish to defer forum election at this
11I(,t0 -2 ; (6f110
time?
12 DC: Sir, Sergeant Frederick wishes to defer forum selection at
13 this time.
14I
MJ: The request to defer forum election at this time is
15I
granted.
16IThe accused will now be arraigned.
17I
TC: All parties to the trial have been furnished with a copy of
18 the charges. Does the accused want them read?
19I
DC: Sir, the accused waives reading of the charges.
20I
MJ: The reading of the charges may be omitted.
21I[THE CHARGE SHEET FOLLOWS AND IS NOT A NUMBERED PAGE.]
I
8 018173
'4
CHARGE SHEET
I. PERSONAL DATA
1. NAME OF ACCUSED (Last, First, MI) 2. SSN 3. GRADE OR RANK 4. PAY GRADE
FREDERICK, Ivan L. II 0.40-2) SSG E-6
5. UNIT OR ORGANIZATION4 6. CURRENT SERVICE
6,17e)-2.
a. INITIAL DATE b. TERM
Headquarters and Headquarters Company, 16th Military Police Brigade
or 0°1
AO'
(Airborne), III Corps, Victory Base, Iraq APO AE 09342 0,4.70
,)01.146-q 1
3 years
7. PAY PER MONTH 8. NATURE OF RESTRAINT OF ACCUSED 9. DATE(S) IMPOSED
a. BASIC b. SEA/FOREIGN DUTY c. TOTAL
$2,809.80 $100.00 $2,909.80 None N/A
II. CHARGES AND SPECIFICATIONS
10. CHARGE I4VIOLATION OF THE UCMJ, ARTICLE 81
SPECIFICATION 1: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, did, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 24 October 2003, conspire with Corporal Charles A. Graner, Jr. and Private First Class Lynndie R. England, to commit an offense under the Uniform Code of Military Justice, to wit: maltreatment of subordinates, and in order to effect the object of the conspiracy the said Staff Sergeant Frederick handcuffed three detainees together and directed the said Private First Class England to photograph the detainees.
SPECIFICATION 2: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, did, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003, conspire with Sergeant Javal S. Davis, Corporal Charles A. Graner, Jr., Specialist Jeremy C. Sivits, 'Specialist Sabrina D. Harman, Specialist Megn M. Ambuhl, and Private First Class Lynndie R. England, to commit an offense under the Uniform Code of Military Justice, to wit: maltreatment of subordinates, and in order to effect the object of the conspiracy the said Staff Sergeant Frederick did place naked detainees in a human pyramid and photographed the pyramid of naked detaineee.
(SEE CONTINUATION SHEETS)
III. PREFERRAL
11a. NAME OF ACCUSER (Last, First, MI) b. GRADE c. ORGANIZATION OF ACCUSER
_
0-3 HHC, 16th MP Bde (Abn) APO AE 09342 .4, vroodhur .: : e. DATE :la MACOL4-
AFFIDAVIT: Before me, the ndersigned, authorized by law to administer oaths in cases of this character,
personally appeared the abo e named accuser this 3o4,4day of ivitittt-i% , aCtit
,
and signed the foregoing ch rges and specifications under oath that he/she is a person subject to the Uniform
Code of Military Justice and hat he/she either has personal knowledge of or has investigated the matters set
forth therein and that the sa e are true to the best of his/her knowledge and belief.
(,_ %) Z 4k7) --0 -2-HHC, XVIII Abn Corps
Typed Name of Officer Organization of Officer
_ _ 0-3 ) Trial Counsel Grade Official Capacity to Administer Oath (See R.C.M. 307(b)— must be a commissioned officer)
Signature
DD FORM 458, MA? 2000 PREVIOUS EDITION IS OBSOLETE.
018 4
CONTINUATION SHEET 1 of 2, DD Form 458, FREDERICK, Ivan L. II, SSG, 11111111111HHC, 16th MP Bde (Abn), Victory Base, Iraq APO AE 09342 (.610) 2 -(b)(7.W Item 10 (continued):
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 92
THE SPECIFICATION: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, who
knew of his duties at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq,
from on or about 20 October 2003 to on or about 1 December 2003, was derelict in the
performance of those duties in that he willfully failed to protect detainees from abuse,
cruelty and maltreatment, as it was his duty to do.
CHARGE III: VIOLATION OF THE UCMJ, ARTICLE 93
SPECIFICATION 1: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did maltreat a detainee, a person subject to his orders, by participating in and allowing the placing of wires on the detainee's hands while he stood on a Meals Ready to Eat box with his head covered and allowing the detainee to be told he would be electrocuted if he fell off of the box, and allowing the detainee to be photographed.
SPECIFICATION 2: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, at or near
Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003,
did maltreat several detainees, persons subject to his orders, by placing naked
detainees in a human pyramid and photographing the pyramid of naked detainees.
SPECIFICATION 3: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, at or near
Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003,
did maltreat several detainees, persons subject to his orders, by ordering the detainees
to strip, and thert ordering the detainees to masturbate in front of the other detainees
and soldiers, anCI then placing one in a position so that the detainee's face was directly in front of the genitals of another detainee to simulate fellatio and photographing the
detainees during these acts.
SPECIFICATION 4: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003
did maltreat a detainee, a person subject to his orders, by posing for a photograph
sitting on top of a detainee who was bound by padded material between two medical litters.
018175
CONTINUATION SHEET 2 of 2, DD Form 458, FREDERICK, Ivan L. II, SSG, C47j1111.111.1111HHC, 16th MP Bde (Abn), Victory Base, Iraq APO AE 09342
Item 10 (continued):
SPECIFICATION 5: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, at or near
Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003
did maltreat two detainees, persons subject to his orders, by grabbing the hands and
arms of the said detainees and ordering them to strike or punch each other, with the
detainees then striking or punching each other.
CHARGE IV: VIOLATION OF THE UCMJ, ARTICLE 128
THE SPECIFICATION 1: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, did, at
or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about
8 November 2003, unlawfully strike several detainees by jumping on and impacting the
bodies within a pile of said detainees with his shoulder or upper part of his body.
SPECIFICATION 2: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, did, at or
near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about
8 November 2003, unlawfully stomp on the hands and bare feet of several detainees
with his shod feet.
SPECIFICATION 3: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, did, at or
near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about
8 November, 2003, commit an assault upon a detainee by striking him with a means or
force likely to produce death or grievous bodily harm, to wit: by punching the detainee
with a closed fist in the center of the chest with enough force to cause the detainee to
have difficulty breathing and require medical attention.
v ryika-ecr elf
CHARGEVI.: VIOLATION OF THE UCMJ, ARTICLE 134
THE SPECIFICATION: In that Staff Sergeant Ivan L. Frederick, II, U.S. Army, did, at or
near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about
8 November 2003, wrongfully commit an indecent act with detainees, Corporal Charles
A. Graner, Jr., Specialist Megan M. Ambuhl, and Private First Class Lynndie R.
England, by observing a group of detainees masturbating, or attempting to masturbate,
while they were located in a public corridor of the Baghdad Central Correctional Facility,
with other soldiers who photographed or watched the detainees' actions.
01817C
(4)g) 2 zi)7e-)
1ITC: The charges are signed by Captain1111=11111.1., a
2 person subject to the Code as accuser; are properly sworn to before a
3 commissioned officer of the armed forces authorized to administer
4 oaths; and are properly referred to this court for trial by
5 Lieutenant General Thomas F. Metz, the Convening Authority.
6I
MJ: Accused and counsel, please rise.
7I
[The accused and his counsel stood.]
8IStaff Sergeant Ivan L. Frederick, II, I'm asking you, how
9 do you plead? Before receiving your plea, however, I advise you that
10 any motions to dismiss or to grant other appropriate relief should be
11 made at this time. Captain1111111will speak for you. (-64)-2.;
12IDC: Sir, the defense wishes to defer motions and pleas at this
13I
time.
14IMJ: Please be seated. [The accused and his counsel resumed
15 their seats.] The request to defer motions and plea at this time is
16 granted.
17IAs previously notified to counsel, I've set the 21st of
18 June as the next hearing in this case, which the court believes will
19 be the time to resolve all outstanding discovery issues, and like I
20 told everybody else, that each case is different, is I expect the
21 government to respond to every discovery request in writing.
22 Defense, if you feel that you are getting an inaccurate response, we
9
I018177
1 will litigate that on the 21st June, and this includes access to
evidence, whether it's witnesses or other forms of evidence.
3IWe also, at that time on the 21st of June, will litigate
4 any motions that either side wishes to present. The date for service
5 of those motions to the other side will be the 14th of June. Email
6 is fine with me and have originals, signed originals for the record
7 of trial. Everybody understand the suspenses?
8I
DC: Yes, sir.
9I
TC: Yes, sir.I
0)-2) 65)(7)(6)-
10IMJ: Captainell. do you understand that your discovery
11 request must be in writing, with a written response, and if you are
12 denied access, I would expect that to be litigated at the same time?
13I
DC: Yes, sir. Defense will file the necessary motions to
compel.I
-
14I(4)62) 4/j)(510Y
-
15Ithe date.
MJ: Okay. NotifyI
16I
DC: Yes, sir.
17I
MJ: He's an attorney, so I'm assuming he will be here on the
18 21st of June or his presence will be waived.
19I
DC: All right, sir.
20I
MJ: Convey that to him.
21IYes, sir.
DC:I
22I
MJ: Any matters to take up before the court recesses?
10 4 018178
ITC: No, sir.
I
DC: Not at this time, sir.
I
MJ: Sergeant Frederick, there is one matter I need to
go over with you. What has just happened is called an arraignment.
An arraignment has certain legal consequences, one of which I'll
explain to you now. Under ordinary circumstances, you have the right
to be present at every stage of your trial. However, if you're
voluntarily absent on the date this trial is scheduled to proceed,
the trial can go on without your presence. Do you understand that?
IACC: Yes, sir.
IMJ: For example, if you went AWOL, the trial could go forward
with you not being here. Do you understand that?
I
ACC: Yes, sir.
I
MJ: And I want you to understand something else, this is
standard advice I give everybodyivhen I arraign them when the trial
does not begin immediately. I don't think you're going to go AWOL or
anything like that and I'm not implying that, but sometimes things
happened and people get hung up or whatever it is. So if something
does happen, make sure you keep your defense counsel and your chain
of command apprised of your whereabouts at all times between now and
the trial dates. Do you have any questions about what I've just told
you?
4
11 018179
1I
ACC: No, sir.
2IMJ: The court's in recess.
3I
[The Article 39(a) session adjourned at 1024, 19 May 2004.]
4I [END OF PAGE.]
12
I018130
Oa Lb* j(b)C7)-'i -
[Court reconvened at 1344, 21 June 2004.]
2I
MJ: Court is called to order.
3IThe accused, captain... Sergeant 111111111 and myself
4 are again present who were present when the court recessed. Captain
5 111111111, you're a new trial counsel in this case?
6I
TC: Yes, Your Honor. My name is Captain
7 I have been detailed to this court-martial by Captain.....
8 Inn Chief of Military Justice,II am qualified and
III Corps.I
9Iand sworn under Article 42(a), Uniform
certified under Article 27(b)I
10II have not acted in any manner which might
Code of Military Justice.I
11I
tend to disqualify me in this court-martial.
12IMJ:I
And CaptainsIIIIIII and allariwill no longer appear?
13ITC:IYour Honor.
That's correct,I
14IMJ:I
Captain."'" where's Mr. 0101021 6 --,/j(6)00 - St-
15IDC:I
Sir, we have a motion to have Mr.IIIIIIrappear by
16I
telephone.
17IMJ:I
Do you have a copy of his appearance to begin with?
18IDC:Isir,I
Yes, I handed that to the court reporter earlier and
19I
your acceptance of his email appearance.
'204MJ:4It's Appellate Exhibit I.4And you have a motion?
214DC:4Yes,4sir,4a motion to appear by telephone.
13 I018181
14MJ: Mark that as Appellate Exhibit II. [Reporter did as
24stated.]
34DC: No witnesses or-argument for that, Your Honor.
44MJ: Just on a notice issue, is that on the 14th of June--excuse
(6/4 --if • MW)
5 me, the ljth of June, M had sent me an email requesting to
6 appear by phone. And at that time, I responded:on the 14th of June
7 that his request was denied. That will be Appellate Exhibit
8 Now, Captainiiiiii2.112)70) -Z since you're appearing on behalf of the
9 accused in this case, I'm going to discuss this motion with you. And
04)-iliA10.)(61°V
10 although I've already told Mr.IIIIIIII've denied the motion, I'll
11 reconsider it after considering this motion hearing. Now he says
12 that, "The United States haa arbitrarily khosen to keep these
13 proceedings in Iraq for what have become purely political reasons."
14 Do you have any evidence of that?
154DC: No, Your Honor.
164MJ: "The United States has done so in the face of ever
17 increasing violence to include the recent mortar attack on Camp
18 Victory. The accused has a right to civilian counsel." I don't have
19 any issue with that, do you?
204DC: No, Your Honor.
214MJ: "The accused should not be penalized by the government's
22 venue selection. The cost of travel is prohibitive. Telephonic
144
01818 2
1 appearances in non-CONUS cases are a regular and ordinary event for
2 Article 39(a) proceedings. It is not reasonable to expect that a
3 military accused can afford to bring civilian counsel to every 39(a)
4 in a non-CONUS setting." (u)zwilv2,_
5INow, CaptainII;can take judicial notice that I just
6 did two hearings in this case with civilian lawyers, true?
7I
DC: Yes, Your Honor.
8I
MJ: And both of thoseotivilian lawyers came here for this
9 hearing, true?
10I
DC: Yes, Your Honor.
11IMJ: Now, on the 19th of May, I set this hearing for today, the
12 21st of June, true?
13I
DC: Yes, Your Honor.
14I
MJ: And Mr.1111111111 was aware of that.
15I
DC: Yes, Your Honor.
16I
MJ: And he was also aware that he was not going to be allowed
17 to appear by telephone.
18I
DC: As of last week, yes, Your Honor.
19I
MJ: Well, when he asked me, I said, "No."
20I
DC: Yes, sir.
21I
MJ: "When the United States chooses to try cases in an
22 inherently dangerous war zone, thousands of miles from CONUS, great
15
I018183
1 deference should be afforded to the Sixth Amendment considerations.
2 To do otherwise would be a defacto denial of right to counsel."
3INow, there's absolutely no authority for that position.
4 Are you aware of any?
5I
DC: No, Your Honor, butt this is a government's--to my
6 knowledge, it's the government's position that the case be tried here
7 in Baghdad.I
fl6,(6)-9, (40) - y
MJ: Oh, I dI
9 because in M motion, there's absolutely no legal authority
10 for the proposition that counsel have a right to appear by telephone.
11 And in my 24 years of practice, I have never seen that occur. I have
12 heard it occurring just for minor appearance issues at arraignments,
13 and that's it. Are you aware of any case, statute, of any
14 jurisdiction that somehoi the counsel gets to determine how he
15 appears and not the Court?
16I
8It dispute that. I'm just trying to figure out,
DC: I am not, Your Honor. But again, sir, this is a different
17 case and a completely unique situation. 1,4)4/6 'Vc.)-1
18It he can't show up?
MJ: What's unique to Mr.
19I
DC: Well, Your Honor, to my knowledge, the civilian co-counsel
20 in the other co-accused cases knowingly and involuntarily chose to
21 come here at their own peril per the directive of the United States.
22 And that is unique to this environment.
16 I018184
°'
(4* 7e-4
1IMJ: Now, Captain NMlet's back up a second.
2I
DC: Yes, sir.
3I
MJ: The accused has a right to civilian counsel, true?
4I
DC: Yes, sir. a./.0)7to
5I
MJ: When Mr.111111, took this case, this case was scheduled to
6 be tried in Baghdad, true? There was no reason to believe it was
7 going to be tried anywhere else.
DC: No, Your Honor, but the case had not been referred yet.
9I
MJ: Okay, but a6 the arraignment, after referral, you indicated
10 and Sergeant Frederick indicated that Mr.1111111is one of his lawyers
11II0,&)-iNerze)-)e
for this case.
12I
QC: Yes, Your Honor.
13I
MJ: And we did that arraignment here in Baghdad. So when Mr.
64)-Li Ph
14 111111-took this case, absent a change of venue motion or some other
15 thing that had not occurred, he knew it was going to be tried in
16 Baghdad.
17I
DC: Yes, Your Honor.
18I
MJ: And he knew that there's exgosions going on around here
19 occasionally.
20I
DC: Yes, sir.
21I
MJ: So why isn't he here?
018185
17
1IDC: Your Honor, to appegT today would concede to the fact that
2 it's possible to try this case in a fair setting, and like just any
3 other court-martial case in the United States or overseas, when in
4 fact, the defense's position, it is not, that it is indeed a unique
5 situation that places people in peril for their lives. And if we
6 were to try this case like any other case, court-martial, then we do
7 not want to give up those rights, will place civilian co-counsel into
8 positions of peril.
9IBut unlike you and unlike Sergeant Frederick and unlike
MJ:
10 every other soldier here in Iraq, MIchoi.ce to come was a
11 free and voluntary decision on his par , true? He didn't have to
12 take this case, did he?
j(h)0)--it
(-6)0
13I
DC: No, sir.
14IHe chose to take this case.
AJ:
15I
DC: That's right, Your Honor.
16ISo when he chose to take this case, does he choose to take
MJ:
17 it where it's going to be tried at?
18I
DC: Sir, we did not know and we've made several requests to the
19 convening authority pre and post-referral to move this case to a
20 location outside of Iraq.
21IOkay, and all those, I assume, they've been denied since
MJ:
22 we're sitting here today.
18 I018186
DC: Yes, sir, they have.
MJ: And you've not asked me to do anything, at this point.
DC: That's correct, Your Honor.
MJ: So how does that excuse him not being here? Every reason
5 you've told me, I don't know a single one that applies to him. And I
6 can understand, CaptainIthat you're in a position to argue
7 something on behalf of the counsel who's not here, so I understand.
8 But I'm trying to understand why I'm being so unreasonable and not to
9 have attorneys actually show up when they're supposed to show up.
10IDC: And you're right, as military defense counsel, I am in a
11I
different position.
4
12I
MJ: And tell me this, he wants to do it by telephone. Now, how
13 are we going to do that?
14I
DC: Yes, sir, he wanted to do it by speakerphone.
15I
MJ: Okay, so he's going to have the speakerphone there, and
16 then how does he have private conversations with his client with the
17 speakerphone? Do we have another phone for that?
18IYes, sir.
DC:I
19I
MJ: And then how does he view the demeanor of witnesses, or do
20 we have videophone for that, too?
19 I018187
1IDC: Those are technological issues that we could possibly
2 remedy to ensure that this case is like any other court-martial case
3 in the world.
4I
MJ: Do you know of any other court-martial case in the world
5 that would do this, that we have this phone thing set up?
DC: Other than in this paTticular location or in Afghanistan,
6I.
7 we are not faced with the same environment as any other court-martial
8 case. So in order to remedy those inherent perils, those inherent
9 issues, and that is a driving theme through a lot of my motions. We
10 have to take those steps necessary to equalize, so to speak, this
11 environment and this court-martial to make it like any other court-
12 martial in the rest of the world.
64J'Zi(b)C2J-i
MJ: Captain111111111et me ask you about another issue, which
14 again, I understand you're the messenger here.
15IYes, sir.
13I
DC:I
16I
MJ: On the 14th of June, I turned his request down, okay? And
17 he knew that, true?
18I
DC: True.
19I
MJ: So apparently, he doesn't show up anyway. So, when I issue
20 something, then apparently it doesn't matter because he didn't show
21 up. When I said, "You can't appear telephonically," that gave him a
22 choice to appear in person or to have his appearance waived.
20I 018188
1IDC: Well, sir, I'd like to bring in the government on this
(4a) kG)6Ve)
2 particular aspect. We had a discussion, Captaining...and myself
3 that possibly the reason why you were turning it down is because his
4 request was not necessarily in the form of a motion, because your
5 response was that you don't litigate email motions.
6I
MJ: That's true.
7I
DC: So, his remedy to that particular misunderstanding between
8 the government and myself was to produce a formal motion for your
9 review. That's my understanding.
10IMJ: "Your Honor, this is a formal request for me to appear
11 telephonically present on 21 June for the motions hearing in the
Z4..)-4/1.6)0e)
12Iabove-Lstyled case." That's from Mr.I"Mr.Iyour request
13 to appear telephonically is denied. If the motion for a new 32 is
14 granted, that will obviously delay the trial. However, the motion is
15 denied and since defense has no other motions, I assume the defense
16 will be ready to set a trial date after the motions hearing next
17 week," signed, Colonel 111111
18INow, what part of that was unclear that his request was
19 being denied? I didn't say "denied" because it's not a motion, I
20 said, "denied". Is there anything unclear about that response?
21I
DC: It doesn't appear to be, sir.I
(-4)Ci-ctio(7)Q;)
22I
MJ: But apparently, it has no effect on Mr.IIIIIIII
21I018189
1IDC: Well, sir----
2I
MJ: I mean, he chose not to come. Is his appearance going to
3 be waived today?
4I
DC: No, sir, my client does not wish to waive the presence of a
5 civilian counsel and wishes to preserve that issue for appeal.
6I
MJ: What issue is that?
7I
DC: His right to have civilian co-counsel at no expense to the
8 government.
9I
MJ: Okay, so where is he?
10IDC: Sir, he made a request in order to equalize this
11 environment with other environments that court-martials are normally
12 convened by an alternative method and that----
13IMJ: And when I tell him "no," apparently, that doesn't make any
14 difference, he doesn't show up anyway. That's what you're telling
15I
me.
16I
DC: I don't understand the question, sir.
17I
MJ: What I'm saying is, he made a wequett.
18I
DC: Yes, sir, he did.
19I
MJ: Not to appear, and I said, "No."
20I
DC: Yes, sir, he made a request to appear, only not in person,
21 but via telephone.
22I
MJ: I know, I said, "No."
22 I018190
1IDC:I
Yes, sir.
2I
MJ: Lawyers appear in court, they don't appear by phone. And
3 you agree, isn't this kind of a judge's role to decide how the cases
4 are litigated? [Pause.] CaptainIIIIIII that's a rhetorical
I
5 question. 0)-2i (b)0.)0 -2-6I
DC: Sir, I agree insomuch that it doesn't impugn upon my
7 accused's right to civilian counsel of his choice. It's based solely
8 on the fact of the situs of this particular court-martial.
9I
MJ: So, if I move it to a place he likes, he'll show up?
10IDC: No, sir, moving to either--arranging for alternative
11 technological means in order to equalize this environment with those
12 environments and other court-martial jurisdictions, or by an
13 appropriate motion before the court for a venue change because such
14 technological and/or other methods of equalizing this environment
15 prove futile, that's what he's getting at.
(4) Zi(6) ate) -2_
16I
MJ: Let me ask you this, captain111110 what happens next time
17 we have a hearing here, then what happens?
18I
DC: As far as what, sir?
19I
MJ: I mean, because what you're telling me now is Sergeant
20 Frederick won't waive his appearance. So theoretically, then we just
21 stop right now.
22I
DC: No, sir.
23
I018191
IMJ: We don't stop right now? You can't have it both ways.
I
DC: What the defense wishes to preserve is its right to file an
appeal of your decision to deny my client's request to have civilian
counsel at no expense to the government!
I
MJ: And when is this appeal going to take place? Does he file
a writ on me?
I
DC: Sir, you just denied it in open court a few minutes ago, so
I cannot speak for what Mr. 1111Mis going to do in this case, but I
g?,(6.) —t-t) (1-b)C7A)—5/
suspect that we will be filing an appeal.I/
IMJ: You're filing a writ?
IDC: Yes, sir. But sir, it is your prerogative to gI
orward in
Iwish
the interests of justice and judicial economy. We just do nI
to voluntarily waive our arguments to having civilian co-coun el, or
to have as a potential issue for our request for venue change.
I
MJ: Well, when you request a change of venue, will
show up for that, or are we going to go thrlugh this telephone thing
again? Is he refusing to show up in this environment totally?
I
DC: Yes, sir, he is.
I
MJ: He's refusing to show up at all?
I
DC: As far as this particular----
I
MJ: No, I'm talking about, is he refusing to show up in Baghdad, Iraq, as long as this case is in Baghdad, Iraq? 24 I018192
1IDC: I cannot answer that, sir, only this particular
2 circumstance. The reason I say that, sir, is because the motion
3 makes reference to the fact that this is not going to be a very long
4 proceeding,
I
5 MJ: Oh, okay.
I
6 DC: And that's why he has qualified his decision in not showing
7I
up.
I
8 MJ: Okay, so if we spend mo4 time here, then it's okay to show
9 up because his time is more valuably used. But, if it's just a short
10I
hearing, then he just appears by telephone.I
(z)to z/i al)00-)1
11IDC: Sir, that's a cost benefit analysis that Mr4111Illinakes.
12I
MJ: Well, apparently. I don't understand--I fail to understand
13 any court that would tell a guy to show up to represent the accused,
14 and he doesn't show up and then I'm supposed to say, "Well, that's
15 okay." I mean, that's what you're telling me to do.
16I
DC: In this particular instance, yes, sir, under this
17 particular motions hearing based on the particular facts as outlined
18 in our motion.
19I
MJ: And as you stated, there's nothing unique to your facts
20 that other people couldn't show, true? I mean, why is mr.1111111 he
21 can't show up but--and I'll take judicial notice that Nr.41111111
I
25 018193
606) -y/40)6 - y
1 showed up and Mr.11111111 showed up. And last time I checked, this
2 is the exact same place.
3I
DC: Yes, sir.
4I
MJ: And they had the same notice that he did.
5I
DC: Yes, sir.
6I
MJ: And so what's unique about him?
7I
DC: The other co-accused have made conscious decisions that
8 this is a case that can be tried with civilian co-counsel present in
9 country. That's the difference, sir. We are not willing to make
10 that stand.
11IMJ: Even though I said a week ago, "No," that now we're-in the
12 position of, "Well, the judge didn't really mean 'no' because it
13 wasn't a motion." Now it's a motion, not it does mean "no," and then
14 therefore, we grind to a halt until Mr. 1.1 fits into his schedule
15 to show up here.
16I
DC: Well, sir, as far as your "no," I don't recall that you
17 qualified it as----
18I
MJ: I read you the whole note there. Later on, I did say, if
19 he's got problems, file a motion.
20I
DC: Yes, sir.
21I
MJ: But this was not....
22I
DC: And I apologize for any confusion on it.
26 I018194
1IMJ: No, that's okayt„ He said at the end of his note, "I do not 2 believe this request requires a formal motion but falls within the 3 discretion of the Court in its procedural administrative capacity, 4 respectfully,I" And then I say, "Your request to appear 5 telephonically is denied." 0-W-16 (b) 7 CC 6INow, what part of that is unclear? He was the one that 7 said it was an administrative matter, not me. Then he filed a motion 8 and the motion was denied, also. 9IIn his motion, he also states, "The accused cannot afford
10 to bring civilian counsel from the United States to Iraq for this
11 brief proceeding." Is that a legal basis not to show up?
DC: Sir, it's the basis that he offered.I
12I(46)-2A,0)(0-2!__
MJ:. That's a-very diplomatic answer, CaptainIIIIIIIIbut my
14 point being is, when the accused are advised of: their rights to
15 counsel and they choose civilian counsel, it says, and I believe I
16 said it in this case, because I say it in every case, at no expense
17 to the government, at your own expense. Now obviously, if you choose
18 to hire a civilian from the States to appear here, there's going to
19 be expenses incurred in traveling. So, why should I--is there some
20 exception that if you go over X-amount of dollars, then he doesn't
21 have to show up?
22I
13I
DC: Sir, I stand by my previous arguments.
27 I018195
4
1 MJ: That's a wise course there, Captain NM(a)2/6)(7-rd 2ISergeant Frederick, at the last hearing, I discussed with 3 you your rights to counsel, and I'm sure you recall that? 4I
ACC: Yes, sir.
5I
MJ: And at the time, you indicated you wanted to be represented
6 by CaptainI
111 and Mr.IIIIII Is that correct?
1,
-
(4)-2) 7 C ) 2_I
(ID )1(6) -46-Li.) OKCJ —4/
7IACC: Yes, sir.
8IMJ: And at the time of arraignment, you said you had no problem
9 proceeding with the arraignment without Mr.IIIIIIIbeing present. Is
..
10 that correct? (I.)6) -9'i (617)0 -Y 11IACC: Yes, sir. 12IMJ: But today, Mr.Iis not present, and he's known for a 13 week that he would not be allowed to appear telephonically, because 14 quite frankly, I think that's an oxymoron. By that, I mean is, you 15 either appear in person or you're not here. A telephone is not 16 appearance. Do you understand that? 17 ACC: Yes, sir. 18 MJ: And I told him that a week ago, and he's chosen not to 19 come. But now, you're the accused in this case, and it's your right 20 to counsel. Do you consent to proceeding today without Mr. dr
(do(*) -Y
21 present? [Pause.] You can talk about it with Captain MOO if you
22I
like. [The accused and his counsel conferred.] (A.) (6)(2.tai 28 018196
1IDC: Sir, by your question, are you asking Sergeant Frederick to
2 waive any possible appeal of your decision in this?
3I
MJ:. I am asking if he consents to go to this hearing today
-Y;(6,0JC-y
4 without .MIhere, period. I'm not going to a--whether it's a
5 waiver or not. My question irs, does he consent to that? Do you
6 understand my question?
7I
DC: Yes, sir. Sergeant Frederick----
8I
MJ: No, I want to hear it from Sergetnt Frederick, because he
9 has a right to counsel. Sergeant Frederick? [The accused and his
10 counsel conferred.]
11IACC: Your Honor, I .do not wish to waive my right to have a
12 civilian counsel of my choice at no expense to the government, but I
13 am willing to proceed with this Article 39 Alpha session here today.
14I
MJ: Okay, Sergeant Frederick, I want to make this very clear
15 because this is the right that belongs to you. It doesn't belong to
16 mr.111111 or CaptaiIit belongs to you. If we proceed today,
17 you wiI
only have Captai Illillas your attorney. Do you understand
18 that?
I cht0-LfAM (Wco z 02)eii(c.i
19 ACC: Yes, sir.
20Iwill not be permitted to appear
MJ: And Mr.
21 telephonically or in any other way, since he's physically not here.
22 Do you understand that?
I
29 018197
DOD-041376
1IACC: Yes, sir.
2IMJ: Now, if you tell me that you want to go ahead and do what
)6+3 we're going to slo today, we've already talked about what we're going
to do today without Mr. 11111 presence for today's hearing, we will.
5 And I don't quite know whether you told me that or not. What I'm
saying is this, is that if you consent to proceeding today with
today' hearing without Mr.IIIII1, we will. If you tell me you will
not consent without Mr.111111 being here, then we will talk about
9 what we will do. And what you told me kind of tells me both. It's
10 not a split-the-baby-type of situation. You either do consent to
11 doing this hearing today without Mr. 41111,here or you do not consent
12 to do this hearing today without mr.mgm here. Those are the two
13 choices. Captaining, is there a third choice I'm missing?
14I(6,0.0
DC: Yes, Your Honor. (4')I
15IMq: And what's that?
16IDC: If this case is somehow moved, venue changed outside of
17 Iraq or if there is another 39(a) session----
18IMJ: We're talking about today. I'm talking about today.
19IDC:I
Yes, sir.
20IMJ: The two choices today. Is there another choice today,
21 right now, not what's going to happen in the future?
22IDC:I
o, sir.
30I018198
14MJ:. So do you understand your two choices?
I
2 ACC: Yes, sir.
I
3 MJ: Which choice do you want to do?
DC:' [The accused conferrellwith his counsel.] Sir, in order to
5 have my client make a full and--decision in this matter, what
6 options, if he does not wish to waive his right to Mr.1111Mare you
7 alluding to? 4 (4-z/ 0)(7)(c)—f
8I
MJ: I will fashion an applEopriate remedy at the time.
94ACC: [Pause.] Your Honor, I do not wish to waive my right to 10 have a civilian counsel of my choice at no expense to the government. 11IMJ: Okay.4[Pause.] In light of the altcused's position as it 12 requires the presence of his counsel and thd*fact that this is a 13 problem solely made by hi$ counsel, that despite the Court's position 14 with him that he had to appear here in person or not at all, but the 15 accused does have a right to civilian counsel. And, I'm not going to 16 penalize the accused for exercising that right. Therefore, at the 17 request of the defense, this case is continued, I'm taking it as a de
Cb -`/A) (C.) 18 facto request, until 23 July. On 23 July, M4is either here 19 or not here. And quite frankly, Captain 41111!, I know I'm looking at C6)67) - ;I
c 2—
20 you and talking to you, but I decide who shows up and who doesn't 21 show up. When counsel get a result they don't like, they do it 22 anyway. I'm not going to force Sergeant Frederick to proceed without
31 4 018199
1 the counsel he's requesting, but that counsel, and I make a finding,
2 has voluntarily chosen not to be here. And I could easily say, well,
3 let's go ahead with it anyway because he's not here on his own
4 choice. But in an abundance to protect Sergeant Frederick's right,
5 I'm going to continue this until the 23d of July. On the 23d of
6 July, that' the date we're going to do it. And you tell 6 -Ct (6)M-4-i
7 that's the date. I don't care how many bombs are going off, 23
8 July--well, rephrase that, I do care how many bombs are going off,
9 but absent extraordinary circumstances, on the 23d of July, we're
10 going to continue this hearing, and at that time, I will litigate
11 your motions.
12I
DC: Sir, given that I am still detailed to this case and I
13 still owe an ethical obligation to vigorously defend my client, I do
14 request that at least of one of my motions, the request for expert
15 assistance be granted so that we may not hinder my client's right to
16 as much assistance as possible given the lack of information
17 given----
aro (//v7xv-y
18I
MJ: Sergeant Frederick says he doesn't want to proceed without 19 M9011111.1. How can I consider your motion tlien? I mean, you can't 20 have it both ways. I understand your position. You can't have it 21 both ways and say, "I don't want to litigate some motions without Mr.
32I
018200
0,W-q,(40D-v
01111111and other motions with him."
1
I
2 DC:': Yes, sir, but I still have an ethical obligation.
3I
MJ:: Have you filed it with the convening authority, your
4 request?
5I
DC:: Yes, sir, we will file it.
I
6 MJ:' Have you filed it?
I
7 DC: Have we filed it? Yes, sir.
I
8 MJ: Okay, but I'm not going to decide--you're telling me--your
9 client' telling me he doesn't want to do anything without M
10 here. So how can I do anything? You want me to do what yI
client
11I
says or -,.not?
12I
DC: Understood. I understand the question, sir.
13I
MJ: Well, the defense has put me in this position. Do you have
14 anything else you wish to add before we recess?
15I
DC: No, sir.
16I
MJ: The court's in recess.
17I
[Court recessed at 1436, 21 June 2004.]
18I[END OF PAGE.]
33I018201
1I
[Court was called to order at 1342, 22 June 2004.]
2ICourt is called to order. All parties are again present
MJ:I
3 that were present that were present when the court recessed, and
4 we've added a trial counsel, apparently, Majoring/at
ATC: Yes, sir. I (4)-2, pjaa-o_
6I
MJ: Please put your qualifications and detailing on the record.
7I
ATC: Yes, sir. Sir, I've been detailed to this court-martial by
8 CaptainI, Chief, Military Justice, III Corps. I am
(W-2!)*(2e)1.
-
9 qualified and certified under Article 27(b) and sworn under Article
10 42(a), Uniform Code of Military Justice. I have not acted in any
11 manner which might tend to disqualify me in this court-martial.
12I
MJ: Thank you. After this hearing last night, I sent an email
13 to all parties in this case, which would be Appellate Exhibit IV. In
14 the email, it's a very short email. It was addressed to all
15 involving United States versus Frederick. "The next Frederick 39(a)
16 is set for 22 July in Baghdad, Iraq. Attorneys who wish to
17 participate must appear in person. Absent good cause, failure to
18 personally appear will constitute waiver," signed by me, actually,
19 typed name at the end by me.I
(6/&)--(0)(-7)(o-x
20IThis morning, appar tly, it was sent last night, I
21 received an email from Mr.111.11as follows, which will be Appellate
22 Exhibit V. "Your Honor, I've received your message. I will not
34I
018202
1 appear on 22 July. My client will waive my appearance so that the
2 matters before the court can proceed without interruption.
3 Respectfully, 11111111111." (4.)1*(1.1
4INow, Captainaillikhave you shared that ema'il with
5 Sergeant Frederick? tZ '(-.)(?„0 72-
6I
DC: Yes, Your Honor, I have.
7I
MJ: And have you discussed with Sergeant Frederick his right to
8 have Mr. 111111116 here phys'ically present?
----(b4.) -4 j b eve)
9I
DC: Yes, sir, I have.
10I
MJ: Sergeant Frederick, although the email says is thattMr. (b,&it j (4-7) c
11 VIM says you will waive his presence, he can't waive his presence. 12 Captain allacan't waive his presence, only you can. Now,
(4) (b)-7(C)'/;,
13 yes-ter dy, you-indicated to me that you did not wish to proceed
WP-11/60[01
14 without Mr.1111111present. And as such, I respected your wishes and
15 we waited until he was going to show up and set a new hearing date,
16 then 23 Zuly, and I've adjusted it one day to 22 July, to give him
17 time to get here, if he wants to get here or not get here, and choose
18 not to be here. And that's what we did yesterday, and I discussed
19 with Captaining, and you were there and listened to the whole
I
20 thing. Cb19 -z) (00C —2— 21INow, Mr.I
tells me today that he's not going to be
22 here on the 22d oI
uly. Now, I take from that that he does not
(6)(6)--Y-i(b: 70-135 4 018203
1 intend to show up for the next 39(a) in your case, whether it's the
2 22d of July or today. But I did say the 22d of July, not the 22d of
3 June. So arguably, there's some ambiguity, saying he's not going to
4 come on the 22d of July, with today, the 22d of June, he didn't
5 address that issue.
6ISo, the question I have to you today is the same question I
7 had to you yesterday. Do you consent to proceeding to today's
8 proceedings without Mr.4111111 present or do you want him present for
C6_)j--9j* 7e)--y
9 these proceedings? And understand this, I'm only talking about
10 today. I'm not talking about further participation in the case.
11 Whether or not he remains your attorney or not, that's up to you.
12 I'm just talking about today.
I
13 Now, CaptainIIIIIII can you move the microphone over
I
(.,(6) 2 _,0(7.)c -
14 towards....
15I[DC complied.]
DC: Yes, sir.I
16I
MJ: Staff Sergeant Frederick, do you have any question about
17 what I just talked to you about?
18I
ACC: No, sir.
19I
MJ: Do you have any question about this issue at all in any
20 way, shape or form, both of what I talked to you today about and
21 yesterday? Do you hle any questions about your right to have your
22 attorneys here present?
36I 018204
4
1 ACC: No, Your Honor. I
2 And you've talked this over with Captain 411111 N6)2-(62.7()Z.
I
3 ACC: Yes, sir.
I
4 MJ:, And you've seen Mr.I(4)4)-4)
email.I
5I
ACC: Yes, sir.
I
6 MJ:, Have you had the ability to talk to Mr.0.1F about this
7 issue?
8I
ACC: I was going to speaeto him this evening, sir
9I
MJ: Now, knowing that you haven't talked to him yet but do you
10 consent to proceeding to this hearing today without Mr.
11 present?
12I
ACC: Yes, sir.
13I
MJ: Now you understand Staff Sergeant Frederick, I want to make
14 it very clear. This is your right, and as I told you yesterday, I
15 will do all I can to respect your rights to counsel, and if you tell
16 me you're comfortable with Captain IIIIIIdoing what we anticipate
17 (-04) 2 -(4 -2-doing today, which deals with a new Article 32 motion and some
18 discovery and expert assistance issues, and that's quite frankly all
19 we're going to do today, we will go ahead and do that.
20I
ACC: Yes, sir.
21I
MJ: But no one is forcing you to make that decision. Do you
22 understand that?
37I018205
1I
ACC: Yes, Your Honor.
2I
MJ: Now, if you don't want to do it, we will go to 22 July, and
3 then we will see what will happen on the 22d of July
if Mr. 1111.1
4 doesn't show up on that date. Do you understand that?
5I
ACC: Yes, sir.I (4,6) -1,1 69)
6I
MJ: So you've talked this over and you feel you -know all you
7 need to know about this?
8I
ACC: Yes, Your Honor.
9I
MJ: And you want to proceed today without Mr.111111 and with
10 just Captain."'"
I
4
402o)2j-(4')(Ma -;?
"1 1 ACC: Yes, Your Honor. 12Ido.
MJ: Then that's what wI
13ICaptain 1111111d you have a motion you wish to make?
14I
DC: Yes, Your Honor. At this time, defense moves for a new
15 Article 32 motion.
16I
MJ: And is it in writing?
17I
DC: Yes, Your Honor.
18I
MJ: Marked as Appellate Exhibit VI.
19I
DC: The next document is the outline of objections in the
20 Article 32 where the defense cited the war in Iraq as a primary
21 reason for his one-day delay in submission.
I
38 018206
1IMJ: Did you submit objections to the 32 within the 5 days plus
2 a day?
3I
DC: Yes, sir.
4I
MJ: And this just explains why it's one day late?
5I
DC: Yes, sir.
6I
MJ: Trial counsel, do you have any objections of the
7 representations made in Appellate Exhibit VII?
8I
DC: No, Your Honor.
9I
MJ: Assuming it was made the next day, the Court Will find
10 that's good'cause for a delay of one day to file the objection under
11I
the Rule.
12IGo ahead.
13I
DC: Next, Your Honor, is the Article 32 investigation, itself.
14I
MJ: Okay. Next?
15I
DC: The next document, Your Honor, is a certified transcript of
16 the Article 32 proceedings verbatim.
17I
MJ: Certified by whom?
18I
DC: I believe a court reporting service in New Hampshire, sir.
19I
MJ: Well, is there anything that says that?
20I
DC: Well, sir, the digital copy was sent directly from the--
21 there's a certification sheet at the last page of that document.
22I
TC: That's unsigned.
I
39 018207
DOD-041386
1IDC: That is unsigned, yes, Your Honor, given the circumstances
2 we're in.
3I
MJ: Trial counsel, do you have any objection or issue as to the
4 accuracy of this transcript?
5I
TC: No, Your Honor.
6I
MJ: I'll accept it as it's represented to be. Go ahead.
7 Anything else?
8I
DC: No more documentary evidence.
9I
MJ: Do you have your list of objections?
10IDC: Yes, Your Honor. I referenced it, I believe you'll find
11 the objections are listed at Appendix E to the report, Annex E.
12I
MJ: [Pause.] Captain141111116an you find.that document for me?
C,O)M
).66)(.7g-)
13 I'm now returning Appellate Exhibit VIII to captain11111111
14I
DC: Sir, the catalog of objections...I have referenced in my
15 email, I reference those specific objections.
16I
MJ: What day did the Article 32 close?
17I
DC:. Sir, I don't have that information in front of me.
18ITC: I believe it was April 10th, Your Honor.
19I
MJ: And you received the report on or about...it's signed 18
-2.).W -2_
April. And you got this note from SergeantI
20I"Do you have any
21 objections to this Article 32 packet before I get Colonel I 22I(q_6.)I-/
recommendation?" Was he the appointing authority? 47,t_C 40 I018208
1IDC: Yes, sir, he was.
2I
MJ: So you had gotten the 32 officer's report, and you
3 basically, rather than filing separate, specific objections under
4 Rule 405(j)(4), you simply sent the email which would incorporate the
5 objections contained in the report.
6I
DC: Yes, sir, in addition to reiterating the defense's position
7 that I understood the telephonic issue, but as I will go through in
8 my argument, the lack of use of email in this environment constituted
9 failure to----
10I
MJ: Trial counsel, do you have any issue that the defense
11 preserved the objections under the Rule by incorporating by reference
12 to this email?
13I
TC: No, Your Honor.
14I
MJ: Just so I'm clear, buried into this document you gave me
15 was Appellate Exhibit VIII, is a list of...there's a list of 13
objections, but 10 appear to be the defense objections.I
16Is that
17 accurate, Captainill. (12)g-Z077k)--
18I
DC: Yes, sir.
19I
MJ: Now, do you contend all 10 of these are still viable for
20 purposes of this motion?
21I
DC: No, sir.
22I
MJ: Do you wish to present evidence?
I
41 018209
1IDC::: Yes, Your Honor.
2IProceed.
3I
DC:; Wish to call Sergeant First ClassialliliAl7)
4I
MJ-: I'm sorry, government, do you have a written response?
5IYes, Your Honor. It' previously been provided to the
6 court-reporter.
7I
MJ:: Which has been marked as Appellate Exhibit X. Go ahead and
8 call Sergeantql111111 6-62)6=,/—V
9 Sergeant First Class U.S. Army, was called as a
10 witness for the defense, was sworn, and testified as follows:
4
11 DIRECT EXAMINATION 12 Questions by the trial counsel [Captain --e 13IPlease state your name for the record.
Q.I
14ISergeant First Class
A.I
15 Q.I
And what's your duty position, ergeant
16 A. Senior Paralegal, 16th Militar Police Brigade, Airborne,
17 Victory Base.
C6 6 -4( 6 7(e7i
18 Questions by the defense:
19ISergeantIdid you previously work for Captain 111111111
Q.I
I
20 of that same brigade? 6 -2 ) 2 rc z 21IYes, sir.
A.I
22IAnd who was he?
Q.I42 I0182t0
4
1 A.I
He was the trial counsel.
I
2 Q.I
And you were his Chief Paralegal NCOIC?
I
3 A.I
Yes, sir.
4IDo you recall the Article 32 investigation for Staff
Q.I
5 Sergeant Frederick held in April?
I
6 A.I
Yes, sir.
7IAnd preparations for that occurred in what month?
Q.I
8IEnd of March.
A.I
9IWere you responsible for coordination with the
Q.I
10 investigating officer?
4
11 A.I
Yes, sir.
12IIn your coordination with the investigatihg officer, how
Q.I
13 did you communicate with him?
14IInitially, sir, or thlioughout?
A.I
15IInitially.
Q.I
16IInitially, I think I emailed him initially, then I went to
A.I
17 his location and delivered the file to him.
18ITo your knowledge, when you delivered the file to him,
Q.I
19 where was his location?I 4
20IHis location is on Victory Base, sir.
A.I
21ISo part of your initial correspondence with the
Q.I
22 investigating officer, you emailed him?
43I 018211
1IWas telephonic testimony available at any other co-
2 accused's Article 32 investigations?
I
3 A.I
It was available at one of the other----
4IAnd do you recall which one?
Q.I
5IU.S. versus Ambuhl, sir.
A.I
6IAnd when was that Article 32 investigation deld?
Q.I
7IAround 2 May, sir.
A.I
8IDo you recall if videoconference was ever available for
Q.I
9 Staff Sergeant Frederick?
10IWas it ever available or was it asked?
A.I
11IWas it available?
Q-I
12INot to my knowledge, sir.
A.I
13IWas email available?
Q.I
14IMaybe, sir.
A.I
15IWas it available to communicate with people here on Victory
Q.I
16 Base?
17IOn Victory Base, yes, it was available, but as far as the
A.I
18I
32----
19I
MJ: Captaining% wouldn't that determine on who you're
INO L-sow-2
20 emailing?
21I
DC: It would determine, Your Honor.
45 I0132
(b) (7)(t)
4
1 mean, Sergeant 1111111can say that he had email
2 capability and the IO had email capability, but that would not
3 necessarily imply that a witness had email capability. So that's all
4 he can speak to.
5I
DC: Okay, sir.
6I
MJ: Go ahead.
7IDid you look into the possibility of ever emailing
Q.I
8 witnesses for purposes of extra-theater communications?
9INo, sir, what I did do, I emailed witnesses trying to find
10 their location. They had their own AKO white pages search, trying to
11 find their information, then I could have their email account, and I
12 could say, "Hey, where are you located? Give me your phone number,"
13I
stuff like that.
14IDid you ever email anyone in the United States or in
Q.I
15 Germany?
16II can't recall, sir. I'd have to check.
A.I
17IWould it have been possible for you to email witnesses?
Q.I
18ISir, it wouldn't have been impossible.
A.I
19IIt wouldn'cf hav been impossible. Did you create the
Q.I
20 investigating officer's witness list?
21ICould you specify, sir?
A.I
46 I0 18214
1IQ.I
In the Article 32 investigation, the initial notification
2 to Staff Sergeant Frederick, there was listed one CID agent. Did
3 that list come from Major44IIIIII1Por did that come from the
I
Up.}2
4 government?
I
5 A.I
Sir, that was the government intended witness--put on to
6 the IO's notification to the soldier.
7IFor his signature.
Q.I
8IYes, sir.
A.I
9IDid you ever receive the defense document witness list?
Q.I
10IA.I
I received an email from the defense with a bunch of names
11I
on it to be witnesses.
12IAnd was that a request for documents?
Q.I
13IYes, sir.
A.I
14IAnd what, if anything, did you do in regards to that
Q.I
15 document witness list?
16IStarted looking, doing what I could to find people and find
A.I
17 the documents you requested.
18IAnd were you successful in finding that?
Q.I
19II didn't....
A.I
20ISergeant First Class/101p how far away is Victory Base
Q.I
21 from Abu Ghraib Prison?
22IMaybe 20 miles, sir.
A.I
01821'5
47
4
1 Couldn't find her?
I
2 A.I
Roger.
I
3 Not that she didn't exist, but that she couldn't be found.
I
4 A.I
Probably because she couldn't be found. I didn't say that
5 she didn't exist.
6IDo you recall the reasons why you were told that the
Q.I
7 victims, the alleged victims in this case were not available?
8II can't recall, sir. One of them probably would have been
A.I
9 security and transferring them from one location to the next.
10IAnd therefore, they were deemed unavailable?
Q.I
4
11 A.I
Yes, sir, by the IO.
12I
DC: Sir, I have no further questions.
13I(hA -2 j(47&..) -Z.-
MJ: Captain 1111111111I
14I CROSS-EXAMINATION
15 Questions by the trial counsel [CaptainfjlgIIIIMW
1ISergeant1111111111111111 you just mentioned in response to the
6 gO Lif (b) 7Qc.I
17 defense counsel's questions about detainees, or movement out to Abu.
18 Can you describe the operational situation here in Iraq during that
19 timeframe?
20IWell, say for instance, say one morning we may wake up,
A.I
21 "Hey, the roads are red," which means there could be an IED on the
22 road or a bridge could be blown, there could be no traffic.
50I1:11gM3
1 Now, when you say,I
"red," what does that mean?
2 A. There's a threat.
3 Q. is there going to be any travel that day?
So,I
4 A. Probably not,I
sir.
5 Q. Was that a consistent thing that would happen during the
6 early part of April of 2004?
7 A. sir,I
Yes, during that timeframe, there was a lot of
8 sporadic behavior out there.
9 Q. Were there insurgent attacks on convoys?
10 A. sir.
Yes,I
11 Q. Was it dangerous operational security going to and from Abu
12 Ghraib Prison at that time from Victory Base?
13 A. sir.
Yes,I
14 Q. As far as telephonic communications here on Victory Base,
15 what did you do to try to get a telephone set up for the Article 32?
16 A. I requested from my First Sergeant to
For the Article 3t,I
17 purchase a speakerphone here on the local economy.
18 Q. And did that happen before April 2d, the day of the
19 accused's Article 32?
20 A. sir.
No,I
21 Q. When did you actually get that speakerphone?
0182,19
51
1IA.I
Actually got the phone, I'd say maybe a week before
2 Ambuhl' 32.
3ISo that's why the co-accused had telephonic testimony.
Q.I
4IThat's why there was a telephone at that.
A.I
5INow, where was the Article 32 actually held on Victory Base
Q.I
6 for the accused?
I
7 A.I
Right here in this room, sir.
8IDoes this courthouse have telephone, a commercial telephone
Q.I
9 line running to it?
10INo, sir.
A.I
11IDid you try to make any attempts in finding somewhere else
Q.I
12 on Victory Base to get telephonic capabilities for the accused's
13 Article 32?
14ISir, I had asked around and looked around and didn't find
A.I
15 anything.
16IWho did you specifically talk to about that?
Q.I
17IFor instance, I spoke with my S6, the commo section in my
A.I
18 brigade. I spoke with other personnel throughout post, 57th Signal
19 Brigade--or Battalion, their telephone operator.
20IAnd what did they tell you?
Q.I
21IThere's no phones available, but they actually found. one
A.I
22 where we did Ambuhl's 32 in Building 0, the conference room. 52 I0162'20
1I
TC: Thank you, no further questions, Your Honor.
I
2 Captain 1111111 anything further?
II
3 REDIRECT EXAMINATION
N0'242 7)10-0
4 Questions by the def nse counsel:
Q.I
6 enemy activity during the month of April, and this affected the
7 physical transportation. To your knowledge, did this also affect
8 electronic mail capabilities, to your knowledge?
9INot to my knowledge,
5ICaptain Illmiirnmentioned that there was significant
A.Ibut it affected other things, sir.
10IYour Honor.
DC: No further questions at this time,
11I
TC: Nothing further, Your Honor.
12 (The witness was excused, duly warned, and withdrew from the
13 courtroom.]
,o)
MJ: Captain .011 (*) - Z (i
14I
15 DC: Your Honor, the defense wishes to call Major
16 Major (b)(7)4ki ---- -U.S. Army; waS called as a witness for the
17 defense, was sworn, and testified as follows:
18IDIRECT EXAMINATION 19 Questions by the trial counsel [Captainip111111111.1 M 2 -77 z-20IPlease state your name for the record, sir.
Q.
I
21I(S)
A.
1111111111.111111.111111 (*)I
22IAnd what's your duty position, sir?I
Q.I
01,8224
53
1 A. I'm the Executive Officer for 57th Signal Battalion.
2 Questions by the defense
3 Q. Sir, do you recall performing an Article 32 investigation
4 for Staff Sergeant Frederick?
5 A. Yes.
6 Q. And do you remember about the preparations for that Article
7 32 in March of 2004?
8 A. Yes,II do.
9 Q. Do you recall how you communicated with Sergeant First
lo --(6) 7,4 -Class INN in preparing for your Article 32? 641--(I
11 A.IEmail, phone call,Iface-to-face.
12 Q.ISir, where are you located?
13 A.II'm located at the stables, which is oIthe east side,
14 north of LSA North--Doclige North.
15 Q.IHere on Victory?
16 A.IYes. '
17 Q.IAnd you were able to communicateIla email from across the
18 installation to Sergeant First Class WM
19 A.IEmail,Iphone call and voice,Iface-to-face, all three.
20 Q.ISir, did you consider your job to conduct a full and
21 impartiallhearing for Staff Sergeant Frederick?
22 A.IYes.
54 I018222
1IAnd as part of your job as investigating officer, you
Q.I
2 signed a document outlining the witnesses that you felt were
3 necessary for that investigation?
4IAn initial list, yes.
A.I
5IAnd that initial list, did you come up with that list?
Q.I
I
Actually, it was preformed as part of the notification for
7 the hearing.
8ISir, where did you get that preformed notification?
6 A.I
Q.I
9IFrom Sergeant First Classing/MIN
A.I
10IQ. ' Sir, did you supplement that at any time after reViewing
11 any of the documents with your own witnesses?
12II took notes along the way. In fact, I think they're
A.I
15I
13 included in my Article 32 packet. When you produced your list, they
14 kind of synced up with the folks that I had in mind anyway.
(b76, tf
MJ: MajorI, did you understand that you had the
16 authority to order your own wiI
sses?
17Iation, yes, sir.
WIT: Through the course of the invesI
18I
MJ: That you weren't bound by either the Sergeant 11111111kst
19 or the defense list?
20I
WIT: Yes, sir.
21I
MJ: Okay.
22I
DC: [To the MJ] Sir, may I have the Article 32 investigation?
55
I018223
[MJ provided documents to DC.] Retrieving the Article 32
2 investigation.
3 Questions by the defens [continued]:
1I
b76)Cita-v
Q.I, is that the investigation report that you
5 made? Does that look familiar?
I
4IMajorI
6 A.I
Yes.
7IIn there, in the investigating officer exhibits, you listed
Q.I
8 a number of your email traffic. Do you recall?
I
9 A.I
Yes.
10IAnd in one of those emails, you noted that some of the
Q.I
11 defense witnesses and document requests were, quote, very relevant.
12 Do you recall making that? Do you want me to show you? [DC shows
13 witness document.] Vc)_07.) 7-c)
14I
MJ: Captain 11111111 it's very difficult for me to follow along
15 with this, since you keoep taking the exhibit back from me. Do we
16 have another copy?
17I
DC: No, sir, when I was trying to make additional copies, the
18 photocopier available could only do one copy at a time. And wpen I
19 was making photocopies for the court reporter, for my own copies, we
20 had to deal with the specific circumstances that we find here at
21 Victory SJA.
22I
MJ: Trial counsel, do you have a copy of the 32 report?
56 I018224
ITC: Yes, Your Honor, I do.
I
MJ: put then you wouldn't have a copy.
I
TC: That's correct, Your Honor.
I
MJ:: Okay, I'll dotthe best I can without a copy. Go .ahead.
ISir, if it would please the Court, maybe we can get
something now that we can mark with either tape or paper clips.
I
MJ: Just go ahead.
I
DC: Okay, sir. We're doing the best we can.
I
MJ: No, I understand, Captain Oa (b,(6JZ -070 2 IDC: Sir, before we get the '11 go in order----
4
you want some paperclips?
I
MJ: Captain AllaI
DC: Yes, sir, that would be helpful. [MJ provides paperclips
I
to DC.] Thank you, sir.
Questions by the defense [continued]:
ISir, were you expecting a defense delay in this case?
Q.I
IWas I expecting a defense delay?
A.I
IYes, sir.
Q.I
IObviously, yes, -from the civilian attorney, as matter of
A.I
fact, I think I had asked you several times about it.
I
MJ: Captain 1111111 you're going to need to stand by the
microphone.I
06 -Z i,gc
I
DC: Okay, sir. 57 I018225
DOD-041404
1ITC: Could the witness repeat his last response, because I
2 didn't hear that.
3I
WIT: I said that I had asked the defense several times if he
4 requested a delay, especially with the civilian attorney coming on.
5ISir, I'm going to show you Investigation Officer Exhibit
Q.I
6 Number 19. Do you recognize that?
7IYes.
A.I
8IAnd what is that?
Q-I
9IThis is your witness list, your request for evidence, I
A.I
10I
guess.
11IMJ: What page is that on?
12I
DC: Investigating Officer Exhibit 19, IOE 19, sir.
13I
MJ: Got it.
14IDid you find any of these witnesses and/or documents would
Q.I
15 help you conduct a full and impartial hearing?
16IYes.
A.I
17IWhich ones?
Q.I
18ISignificant activities.
A.I
19ISignificant activities?
Q-I
20I(-649-020)(
MJ: Please speak up, Major/111111111
58 I01'8'226
1IWIT: The 15-6, which obviously covers all of that, because
2 that's possibly what you were asking for earlier was what was
3 involved in the 15-6.
I
4 MJ: Which...because I don't have the document before me.
I
5 WIT: This is Major General Taguba's 15-6 that was initiated,
6I
sir.
I
7 MJ: Got it, go ahead.
8I
WIT: Which I actually did introduce into my Article 32 for that
9 very reason.
10IMJ: Okay, it was considered as an exhibit.
11IWIT: Yes, sir, it was.
12IAny other documents in the defense request that appeared
Q.I
13 unreasonable or irrelevant?
I
14 A.I
I can't remember off the top of my head.
15IThe witness list that the defense outlined in its witness
Q.I
16 request list included co-accused, eyewitnesses and chain of command
17 and alleged victims. Did you find those would be helpful in order to
18 conduct a full and impartial investigation?
A.I
20 statements from co-accused, the chain of command and from detainees
21I
19IYes, but obviously in my packet, I had numerous sworn
at the prison.
59I018227
DOD-041406
4 (661-vi 6.4(e) -Y"
1 MJ: Major 111111111 by co-accused, at the time of the hearing, 2 were they all basically represented by counsel, to your knowledge? 3I
WIT: Actually, when the government requested they appear, they
4 all responded back by counsel. However, in my CID packet, I did have
5 the sworn statements, as well as the CID interviews in there.
6Icaptainalla is there any issue about the unavailability
MJ:
(4}-4.k0-Z(a,,/
7 of the co-accused?
8I
DC: All but one, Your Honor.
9I
MJ: Who's that?
10IDC: PFC England, Your Honor. She did not reply back that she
11 was not unavailable due to her counsel making a statement on her
12 behalf.
13I
MJ: Was she represented by counsel?
14I
DC: She was not represented by counsel at the time. In fact,
15 when we go through the verbatim transcript, the reason why she was
16 declared unavailable was solely because of her presence in the United
17 States, according to government, through Captainliplit-d_f4jOi
18 representations to the defense. And that's why she testified a month
19 later via telephone in the Ambuhl case.
20I
WIT: She was declared unavailable because she was outside the
21I
100-mile radius.
22I
DC: Outside the 100-mile radius.
60I018228
(bAj-itA lik-f
4
1 MJ: Major111111111,11anybody outside the 100-mile radiUs was 2 unavailable in your mind? 3I
WIT: Yes, sir. The question came up from the defense, I
4 actually had to recess my hearing. I referred to my legal advisor,
0-LWC.)-2-
5 Captain and I asked her here, what were the
6 guidelines with that, and that's kind of the response she gave me,
7 sir. So that's what I put out.
8I
MJ: So you applied a bright line 100-mile rule? More than 100
9 miles, gone, you're unavailable?
10I
WIT: Obviously, out of theater, sir. With the detainees and the
11 detainees that were released--
,JV-(4X_A)-
MJ: Major 11111111, it would be easier--understand what I'm
13 asking. For those who were more than 100 miles away, forget the
14 detainees,-because they weren't more than 100 miles away.
15I
12I
WIT: Correct, sir.
16I
MJ: They were detainees in the prison.
17 WIT: Yes, sir.
18I
MJ: For those who were more than 1Q0 miles away, did your
19 inquiry stop once you found out they had redeployed or were outside
20 of theater?
21I[No verbal response.]
WIT:
61I018229
A..)z -(06)M
4
1 MJ: And you simply;say, and Captainglillif told you that if 2 they're more than 100 miles away, they're unavailable. 3I
WIT: Yes, sir.
4I
MJ: And that was the end of your inquiry.
5I
WIT: Well, at least the end of the inquiry, I wish I had all the
6 data. I already had----
7I
MJ: No, no, I'm just talking about as far as their being
8 unavailable.
9I
WIT: Yes, sir.
10 Questions by the defense [continued]:
Z:1 -1/;#7-0-4/
11 Q.Idid you have an opportunity to review Rule
MajorI
12 for Court-Martial 405, Aillich governs Article 32 investigations?
13II read it several times.
A.I
14IAnd when you read it several times, did you consider any
Q.I
15 alternatives to testimony, other than in-person testimony?
16IHonestly, no.
A.I
17IAnd why not?
Q.I
18IBecause I already had from the majority of those sworn
A.I
19 statements and CID testimony.
20ISir, when you were looking at those sworn statements, were
Q.I
21 you able to cross-examine any of those statements?
62
I018230
DOD-041409
(*Wit) z_
1 MJ:' Captain/1MM I understand you can't cross-examine the
2 statements. There's no need to ask such a question.
3 Q. Were you able to further explore....
4 MJ:' I get your point.
5 DC:• All right, sir.
6 Q. When the defense made numerous requests in the verbatim
7 transcript and later via email to do some of this questioning via
8 email, did you take that under consideration?
9 A. Email?
4
10 Via email? 4
11 A. I don't recall.I know we talked about telephbnic 12 representation. 13 Q. Would you have been amenable to conducting witness 14 interviews for purposes of the Article 32 investigation via 15 electronic mail? 16 MJ: Let me back up, rather than give you a hypothetical. Major 17 110111111111 was at any time that proposed procedure proposed?
NO) t)-
18 WIT: Email? '
19 MJ: I'm assuming what you're talking about, you send an email,
20 you get a question, it's like a chat room?
21 DC: Yes, sir, IRC?
63 018231
1IMJ: Was that ever requested by anybody to your knowledge, to
2 your memory?
3I
WIT: It wasn't to me, sir, no, sir.
4 Questions by the defense [continued]:
5IDid your legal advisor advise you on taking the fact that
Q.I
6 we are in a war zone into account when determining ways and means of
7 conducting a full and impartial investigation under the rules?
I
8 A.I
We never really had a discussion such as that.
9IDid you take into the fact that we were currently in a war
Q.I
10 zone and explore options other than in-person testimony to ensure
11 that your investigation complied with the Rule of Court-Martial 405?
12I
A. Obviously, it came up in the courtroom. Captain MEM
(46)2 /OP -2-
13 seemed to think that given the circumstances, we weren't really set
14 up to do that, in lieu of the fact that I did have the statements and
15 such which are admissible under Rule 405. We didn't pursue it to
16 great lengths.
17I
MJ: You considered, you had sufficient information that you
18 believed complied with the Rule to make your findings and
19 recommendations?
20I
WIT: Yes, sir.
21I
MJ: Got it.
64I018232
1 Questions by the defense [continued]:
And that consisted solely of documentary evidence and the
3 testimony of three people?
4IAnd obviously the photos I had, as well.
2IQ.I
A.Ift just wasn't
5 the documentation.
I
6 MJ: Okay, you're talking about the photos plus the documents?
I
7 WIT: Yes, sir.
I
8 MJ: Plus the three witnesses who testified.
I
9 WIT: Yes, sir.
4
10 MJ: Got it. 4
Sir, do you recall the closing arguments of the prosecution
12 in the Article 32 investigation?
13IA.I
11 Q.I
Could you be more specific?
14IMore specifically, do you call the presence of a laptop
Q.I
15 computer and an audio visual equipment----
16IA summary?
A.I
17IFor the summary?
Q.I
18II recall the summary, yes.
A.I
19ISo the ability to conduct an email or a chat room argument
Q.I
20 was available, at least for the closing argument.
21IThere was a computer slideshow. I don't see the----
A.I
65
I018233
1IMJ: Was there a computer slideshow with a PowerPoint
2 presentation with Internet capability?
I
3 DC: Your Honor....
I
4 MJ:. No, I'm just asking.
I
5 DC:- All I'm saying is, Your Honor, it would not be a far
6 stretch to even have to change venue locations for the Article 32 in
7 order to comply with the defense's numerous requests that this
8 Article 32 investigation in order to partially comply with the Rules
9 of Court-Martial, that we explore all options. Because just like any
10 other Article 32 outside this theater, we should take those steps
11 necessary to equalize this situation.
0,-ZM
(6)
12I
MJ:- I got it, Captain.= I understand your point_ My
13 simple point is, is that a computer-generated stand alone
14 presentation against a screen is not the same as a video
15 teleconference capability, which is what you're talking about.
16I
DC: No, sir, I wasn't talking about video teleconference.
17I
MJ: What were you talking about then?
18I
DC: I was talking about electronic mail or Internet relay----
19I
MJ: Did you ever ask for Internet mail?
20I
DC: Yes, sir, I did, and that's why the verbatim transcript,
21I
I'll be going through....
66 I018234
I
1 MLT: Is it in your list of objections, since I don't have them
2 now?
I
3 DC: Yes, sir, if you look in--when referenced the objections in
4 my electronic mail notification pursuant to R.C.M. 405 within the 5
5 days, you will notice that I asked the convening authority to explore
6 these options, that I had mentioned numerous times during the Article
7 32 investigation, itself, both through the investigation officer and
8 to the----
9I
MJ: Let me see the----
10ITC: Sir, it's attachment 3 of our motion. There's a list of
objections.
-
11I(6,6) Z;(4)(7)
12I
MJ: Thank you, Captain111111111/. [Pause.]
13I
DC: If it would help, Your Honor, it's specifically objection
14 11 listed in the report where the deAtnse objected to the unavailable
15 witnesses and made the request to the convening authority.
16I
MJ: Where is it in here that says that you asked for email?
17I
DC: Your Honor, that's the reason why I requested a verbatim
18 transcript. Because Your Honor, I made the objection----
19I
MJ: What page is it in the verbatim transcript?
20I
DC: If I may have a moment, sir.
21I
MJ: Sure.
67 I018235
1IDC: Your Honor, during the defense's initial presentation on
2 page 18 and 19 of the verbatim transcript, "The defense is more than
3 willing to request recesses until we are able to get as much
4 information as possible, including getting the 15-6 investigation.
5 And the defense is also going to utilize whatever means necessary,
6 including email, telephone, whatever we can, given the nature of our
7 surroundings, in order to get as much information as possible to use
8 so that we can make the appropriate decision as to disposition and
9 that you can make a proper recommendation to the higher----
10IMJ: Captain I just asked you where it says "email," I'm
"(b.),E Z
11 not asking for the whole thing. What line is that on?
12I
DC: Sir, it's the bottom of—lite 23 and lines 1 through 10 on
13I
page 19.
14I
MJ: Okay, but in your objections that you sent to the--so you
15 state this parenthetical in here on your email, "Alternative forms of
16 testimony may be considered, telephonic, email, IRC," etceteras,
17 preserves it, even though it's not in your list of objections at the
18I
32.
19I
DC: Yes, Your Honor. I not only cross-referenced those lists
20 of objections in the appendix, but I made the specific ones. But we
21 need to break open the box.
22I
MJ: I got it, go ahead. 68 I018236
1IDC: And I'll go through that in a moment in depth.
2 Questions by the defense [continued]:
3ISir, do you recall that opening statement?
Q.I
4INot verbatim.
A.I
5I
MJ: Counsel, it's in your transcript. Whether he recalls it or
6 not is not the issue.
7IDid you consider taking the war in Iraq and our presence
Q.I
8 here in Iraq in making determinations of alternatives to testimony,
9 other than live witnesses?
10IA.I
I guess ;in terms of the war in Iraq, I would consider the
11 burden of gathering evidence harder, harder to do, so I don't think
12I
so, no.
13ISir, in your report, I'm going to reference back to your
Q.I
14 report, and on the continuation sheet of block 21, DD Form 451, which
15 is listed as your Appendix F, court-martial witnesses availability,
16 do you recall this document?
A.I
18II'm showing that----
17IYes, this was provided by....
Q.I
19I
MJ: We can't mumble. Ask the question and, you're looking at
20 the document, Majo if you have an answer you need to speak
21 up on it. It's not a c nversation between you two. The court
Lf*CU 4 018237
1)P-Z )(6)(40-
1 reporter can't hear it. You show him the document, ask the question,
2 Captain 111111i or give me an answer.
3I
WIT: I recall that I spoke that I wanted to have this in my
4 report.
5I
MJ: Referring to....
6I
WIT: I cross-referenced what I thought with what the government
7 had in terms of their various categories, i.e. outside the 100-mile
8 radius, and those rights contained on----
9I
MJ: Okay.
10IQ.I
In that specific section of that report, in that first
11 line, you made the determination based on the evidence you received
12 at the Article 32 investigation that they were not only unavailable,
13 but that they were going to be unavailable at trial, as well.
14II said, were more than likely not available.
A.I
15IMore than likely unavailable.
Q.I
16IRight, and one of the--
-A.I
C6)(6I
h)(7)(C)
MJ:, Major
18 question that's being asked.
19IAnd that particular sentence was for all the witnesses that
17Iyou don't need to answer more than the
Q.I
,
20 you listed underneath it.
21IIn these various categories, yes.
A.I
22IIn these various categories.
Q.I
I
70 01 8 23 8
4
1 A. . Obviously, unless their category changed.
I
2 DC:. Sir, no further questions.
I
3 MJ:, Captain I46)Z-(b)(17AI -2 4ICROSS-EXAMINATION 5 Questions by the trial counsel [Captain 6ISir, I just want to be clear of how you proceeded with the
Q.I
7 investigation. So you were given a case file in this case. Is that
8 correct?
(4)Z7V6)(7)
9IYes, Sergeant... hand elivered the case file. He had
A.I
10 me initial the draft sheet, the noti cation, that I signed that had
11I
the....
12IThe one witness being AgentI
Q.Iat that point?
13IYes.
A.I
14IAnd then after you received the defense witness list, did
Q.I
15 you add a couple' more witnesses that you wanted to have in-person,
16 live testimony from?
17II created a list.
A.I
18IDid he come in
Q. Were one of those people Sergeant NM
I Ng 2 ibo
19 and testify?
20ISergeant Majo1111111111V7-
A.I
21IYes. And Sergeant..., is he another person that came
Q.I
22 in to testify? 71I018239
1INow, that initial case file from CID that you received, you
2 received a whole bunch of sworn statements in there. Is that
3 correct?
I
4 A.I
I received a pretty thick packet.
5IAnd you reviewed the statements of some of the people that
Q.I
6 the defense wanted there at the hearing that day. Is that correct?
I
7 A.I
I read that cover to cover, sir.
8INow, you talk about that some of those people were over 100
Q.I
9 miles away, what did you do to try to get them on the telephone? Did
10 you think about how much relevant testimony they were going to have?
4
11 A.I
Honestly, reading 405, sworn testimony, unsworn testimony
12 in some circumstances, was authorized, acceptable. Honestly, since I
13 had that sworn testimony, yes, I accepted it. Did I try and go over
14 that 100-mile radius? No.
15INow, what went into some of your considerations as far as
Q.I
16 the 100-mile radius? The operational situation in Iraq, did that go
17 into your thinking?
18IIf they were in theater, I mean, you can equate 100 miles
A.I
19 stateside to literally 10 to 15 miles here if you look at it, just
20 between here and the Green Zone. So, it did play a role. Obviously,
21 stateside, Germany, do we want to bring those folks over here? The
22 rules of evidence kind of allow you that 100-mile lirmit just to
73I
018241
1 alleviate a lot of pain associated with it. I guess that's my
2 interpretation of 405.
3INow, you mentioned that 10 or 15 miles in this environment
Q.I
4 could be equated to 100 miles back at stateside. Can you talk about
5 the operational situation that was present in Iraq in April of 2004?
6II think April was the deadliest month in theater, sir.
A.I
7ISo there were lots of attacks and insurgents on our
Q.I
8 convoys?
9IMortars, yes.
A.I
10IQ.I
Did that play into your consideration about going out to
11 Abu Ghraib and interviewing some of the detainees out there?
12IThat was never proposed, but obviously, that would play a
A.I
13 role. It was proposed to try and find some of the released
14 detainees, to try and find some detainees to bring them here. But
15 once again, it seemed--I had testimony of those key witnesses
16 already. To try and find them, it would seem to be too difficult a
17 task given the timeline.
18INow, when you say "key witnesses," are you talking about
Q.I
19 people like Specialist Harman, Sabrina Harman, one of the co-accused
20 in this case?
21ICo-accused and the detainees that were actually abused,
A.I
22 that they had gotten their medical records and....
74I018242
1IAnd you also had a CD full of pictures?
2IA.I
And videos.
3IAnd did some of those pictures and video show the accused
Q.I
4 in this case perform certain acts with the detainees?
5IYes.
A.I
6IThat were actually charged as charged offenses in this
Q.I
7 case?
8IYes.
A.I
9IYou also had in your possession General Taguba's AR 15-6.
Q.I
10IA.I
I actually recessed my hearing just so that I could get it
11 into testimony.
12IOkay, so the hearing actually started on the 2d of
Q.I
13 April----
14IIt started on the 2d and ended on the llth.
A.I
15IAnd then so you waited a week and then had to reopen while
Q.I
16 that 15-6 was being obtained. Is that correct?
17INo, I believe we recessed the first time, at which the
A.I
18 availability--the defense tried to--asked us to try and find some
19 folks. That was that first 7-day recess. The recess between the 9th
20 and 10th was, we found out the 15-6 was done, could be released. So,
21 we recessed to allow that to be copied and put into evidence.
75I018243
4
1 A.I
Yes.
2IOn the second page of that, number 11, what's your response
Q.I
3 to number 11?
4IDo you want me to read it verbatim?
A.I
5IYes, please.
Q.I
6I"I made a ruling on the availability of witnesses for the
A.I
7 purpose of this Article 32 investigation. If they were outside the
8 100-mile radius or either a detainee or former detainee, they were
9 considered unavailable due to the extraordinary security and
10 operational measures and concerns associated with providing their
11I
testimony."
12I
MJ: Majorillin did you...and I asked you earlier about a
13 witness that was outside the 100 miles, and you indicated that your
14 legal advisor had indicated that was kind of a bright line rule.
15I
WIT: Bright line rule, sir?
16I
MJ: By that, I mean, if a witness was 101 miles away, they
17 were, per se, unavailable?I
And if they were 99 miles away, they
18 weren't per se, unavailable, that you have to balance?
19I
WIT: Sir, I don't want to say that she made that clear
20 delineation, because obviously, you really don't have to do that.
77I018245
1IMJ: Well, let me ask you this, if a witness is more than 100
2 miles away, did you consider what they might say? And say, even
3 though they are 100 miles away, I may bring them here?
4I
WIT: Yes, sir. Obviously, if there was a witness who had some
5 type of, you know, truly relevant testimony that I didn't already
6 have, I would like to think that we would kind of go to some tougher
7 means to get them here.
8I
MJ: So on each of these witnesses that you list that were more
9 than 100 miles away, did you have some evidence of what they would
10 have said?
11IWIT: Sir, I mean, we can go down the list, but for all intents
12 purposes, yes, sir.
13I
MJ: And then after you have that evidence, you considered both
14 the location and assessing their testimony, or just their location?
15 [Pause.] I know, Majora11111111Wou're not a lawyer, so just tell
(b)0I
(') 0)0
16 me what you considered.I
WIT: Sir, I considered both----
18I
17I
MJ: I want you to understand something, there's no right or
19 wrong answers.
20I
WIT: Yes, sir.
21I
MJ: The only right answer is the truth, okay? So tell me what
22 you thought at the time.
78 I018246
1IWIT: I considered both, sir. Again, there wasn't a witness, or
2 if somebody to testify that was unique, I guess is the way I want to
3 phrase that.
4I
MJ: So you would say most of these people were cumulative to
5 somebody else?
6I
WIT: Yes, sir.
7I
MJ: And you considered--just to make sure what you considered,
8 you considered the sworn statements of the co-accused?
I
9 WIT: Yes, sir.
4
10 MJ:. The pictures? 4
11 WIT: Yes, sir. I
12 MJ: And the live testimony?
I
13 WIT: Yes, sir.
I
14 MJ: Did you consider anything else? Any other sworn
15 statements?
16I
WIT: Besides what I already had, I mean, I had all of that
17 already.
18I
MJ: No, I didn't ask--no, but I'm asking, for example, the
19 detainees that were unavailable, did they provide sworn statements?
20I
WIT: I had sworn statements in the CID packet from detainees,
21I
yes, sir. Outside of that, no, sir.
79 I018247
1IMJ: Let me back up, you're given a packet that started the
investigation with all this stuff in there.
3I
WIT: Yes, sir.
4I
MJ: And a lot of that, quite frankly, designed to know who you
5 need to call or not call. But now, I want you to go to the end of
6 the investigation, did you consider the--and it's at least unclear as
7 I'm reading your report, that's probably my fault since I just say
8 this voluminous document, you had three witnesses testify at least to
9 something as opposed to not invoking. You had sworn statements from
10 co-accused, and you had pictures. Did you consider the statements of
11 the detainees that you found unavailable in making your findings?
12I
WIT: No, sir.
13I
MJ: Even though it was in the--okay. You understand what I'm
14 talking about?
15I
WIT: That goes to cumulative, sir.
16I
MJ: So, did you consider anything else in making your
17 recommendations other than those three categories I just stated?
18I
WIT: No, sir.
(1
7,0 -2-
19I
MJ: Thank you. Captain drilliffain-
20I
TC: No further questions, Your
21I
MJ: Captain
22I
DC: Yes, sir.
80 I018248
1 CROSS-EXAMINATION
2 Questions by the defense:
3ISir, you mentioned just now that you made a decision that,
Q.I
4 on witness availability, I'm going to read to you--because I need to
5 read to you quickly from the verbatim transcript on page 126 and page
6 127, just before you made that decision. I mentioned, "Sir, if
7 that' the case, the defense would recess until we are able to
8 communicateI
email or whenever you make your decision or able to
9 procure additional witnesses and continue this Article 32
b)b N70-y
10 investigation. Major I'm going to take an immediate
11 recess now. Let me call, inaudible, and then we'll reconvene today
12 and we can go ahead," and then we reconvened later. At that point,
13 do you recall talking with your legal advisor?
14IYes, that's when I talked to Captain.... about this
A.I
15 issue I (4) z -CO) ni 2_
Q.I
17 email?
18IAgain, if you read my--result of the objection, she said,
16IAnd what was her--what was your decision about the use of
A.I
19 "Out of the 100-mile radius, detainees, unavailable." So if they're
20 determined unavailable, I believe that kind of ends the
21 communication. Unavailable is unavailable, I guess is what I'm
22 saying.
I
81 018249
DOD-041428
1 IDC: No further questions, sir.
I
2 TC: Nothing further, Your Honor.
3I
[The witness was excused, duly warned, and withdrew from the
4 courtroom.]
5I
MJ: Defense?
6I
DC: Nothing further, Your Honor.
7I
MJ: Trial counsel, do you wish to present any evidence?
8I
TC: No, Your Honor.
9Icaptainillill do you wish to add to your brief?
MJ:
10IDC: Yes, s i r .I
-NO)(0
11IMJ: Proceed.
12I
DC: Your Honor, the Rule for Court-Martial 405 presumably was
13 designed for both non-wartime and wartime environments. That is why
14 Rule 405 provides for alternative means of testimony Tr this
15 particular situation. In the defense's objections to both the
16 witness and document availability, as part of that objection and
17 throughout the Article 32 investigation, the government--the defense,
18 time and time again said, "Government, we need to think outside the
19 box here. I take into account the fact that we are in Iraq. I've
20 taken into account that April is a bad month for the Coalition. So
21 this is important. This as an important case for my client. These
22 are important witnesses for this investigation. In order for you to
82I 018250
1 conduct a full and impartial investigation, let's explore alternative
2 means of communications. I understand the fact that we can't have
3 telephonics [sic], but I do recognize that before this hearing, where
4 people within this very room earlier were communicating via
5 electronic mail. We do know that we could have even had this
6 presentation on Victory Base in at least two people's offices,
7 Sergeant First Class...NW who received email, and Major
8 who also received email.
I)-ij Wfd-y 9IAnd sir, if you further look into the packet of all the 10 different personnel who communicated via email during this time, it's 11 staggering. The convening authority, the Staff Judge Advocate 12 communicating with respective Brigade Commanders soliciting for 15-6 13 officers. All of this was done prior to April and prior to this 14 hearing, the Article 32 investigation. 15IMJ: Captain... let's narrow this down to a little bit more I16 to legal issues. (-6)((0)2_ -4 ?- -(c) z-17IDC: Yes, sir. 18IMJ: I understand that. Now, you have a whole list of 19 objections here with your email, but what I'm hearing you telling me 20 is, essentially, what you're objecting to is the failure to produce 21 other evidence. 22IDC: Yes, sir. 83 I018251
1IMJ: Does that summarize--I mean, okay, that's what we're going
2 to focus on, but do you have anything else that you're objecting to
3 to me today other than that?
DC: Other than the availability of witnesses and documents?
5I
MJ: I'm talking about the failure to provide evidence.
6I
DC: The failure to provide evidence, defense evidence, and its
7 prejudice it has caused this defense.
8I
MJ: No, we're going to get there. We're going to get there.
9 But I just want to make sure I know--because your whole list of some
10 of these things, you apparently are not raising that's in your list
11 of objections here.
12I
DC: Yes, sir.
13I
MJ: So what you want me to talk about or decide is whether or
14 not Sergeant Frederick's substantial right to have evidence produced
15 at the 32 were 'not Amplied with, and as such, he was prejudiced.
16 You would agree with me that that's our standard.
17 DC: That's our standard, yes, sir.I
,17)zi.• (A)-(7ki
18IStep one is the reasonable
MJ: So let's back up to step oneI
.
19 availability issue. Now, Major gave, quite frankly, two
20 answers to the same question. On the one hand, he said, "I
21 considered the 100 miles as being unavailable," and then later on, he
22 says, "Well, it depends what they would say," too. And obviously, if
84
I018252
DOD-041431
1 it's a bright line rule of 100 miles, that is clearly not the legal
2 standard, and whether that was miscommunication or just misspoken on
3 his part, that's the way it goes. But if he applied, because I
4 understand, that's wrong and that's error.
5I
DC: Yes, sir.
6I
MJ: There's no dispute. Trial counsel, do you have any dispute
7 with that?
8I
TC: No, that's the state of the law, Your Honor.
9I
MJ: However, on the other hand, if you consider the distance
10 with the need of the testimony, the security situation and the
11 cumulative nature of the testimony and find the person unavailable,
12 that would appear to comply with the state of the law of finding one
13 unavailable. True?
14I
DC: True, Your Honor. That's why the focus of my questions in
15 the beginning were the victims that would be necessary for a full and
16 impartial hearing, the co-accused, full and impartial hearing, and I
17 asked him during my list of people that he thought were, quote, in
18 his report, very relevant.
19I
MJ: But I come back to the--what I'm saying is, that if he
20 applied that second standard, and quite frankly, there's an issue
21I
there.
22I
DC: Yes, sir. 85I 018253
DOD-041432
1IMJ: But assuming he applied that second standard, that was the
correct standard for unavailability.
3I
DC: That would be....
4I
MJ: That would be that considering distance, operation
5 concerns, but most importantly, necessity of the testimony, which is
6 what he said when he fleshed it out, that if it was an important
7 witness, we'd get him here, but most of this was cumulative with
8 something else.
9I
DC: Yes, sir.
10IMJ: Now let's go to step two. Of all these witnesses, since
11 what we're talking about is witness availability, and this is in the
12 IO report right after your objections. Ignoring those who invoked
13 their rights, because at least that was his conclusion, that these
14 people all invoked their rights.
15I
DC: Yes, sir.
16I
MJ: And although you take issue whether England actually
17 invoked her rights, you would agree with me....
18I
DC: She's outside the 100-mile radius.
19I
MJ: Well, no, that's not what I was going to say, but she was a
20 suspect, and actually she's currently a charged suspect.
21IYes, sir.
DC:I
86I 018254
1IMJ: So his conclusion that she had invoked, although it may not
2 have been correct in some ways, certainly was based on reasonable
3 interpretation of her alleged role in this, true?
4I
DC: Sir, I don't want to speculate.
I
5 MJ: Well, isn't she....
I
6 DC: Because of the fact---
I
7 MJ: One moment, one moment. Well, the fact that she's listed
8 among the specifications would kind of make her a coaccused.
-
I
9 DC: Yes, sir, I agree to that.
4
10 MJ: Okay. 4
11 DC: But not necessarily that she wouldn't testify. Another 12 investigating officer in another case----13I
MJ: I'm just saying, is it strikes to the Court it's not an
14 unreasonable conclusion whether the investigating officer include
15 this person who would have invoked her rights had she testified. Let
16 me move that to the side. Of all these other people listed here on
17 your list, or actually his list, I guess, based on your list, and
18 that's the list we're talking about, right?
19IYes, sir.
DC:I
20I
MJ: What would any of these people have said that by not having
21 the testimony prejudices the substantial right of your accused?
22 Start at the top and work down.
87I
018255
1IDC: All right, sir. First of all, and I apologize for not
2 being able to present it, but I'm having problems printing out my
3 discovery responses from the government. I received, as part of my
4 discovery, a list of five witnesses, live testimony witnesses that
5 were going to be present at court-martial and be provided by the
6 government. Sir, four of those----
7I
MJ: Captain1111111 here's what I'm talking about. I'm not
8 talking about today. (4) IPAc-
9I
DC: Yes, sir.
10IMJ: Today's different.
11IDC:I
Yes, sir.
12I
MJ: Today, somebody could say something very relevant to what
13 happened. The question is, at the time of the 32, what would these
14 people--I mean, you would agree with me that that's what we got to
15 look at, the time of the 32, not today.
16I
DC: Yes, sir.
17I
MJ: Not last week, because if all of a sudden a witness showed
18 up that was totally exculpatory today, does that mean you get a new
19I
32?
20I
DC: Sir, but the prejudice that's established by that----
21I
MJ: No, no, just answer each question as I ask it, okay?
22I
DC: Okay, sir.
88I
018256
1IMJ: But I'm saying is, don't we look at the witness
2 availability and what they would say at the time of the request of
3 the 32, not what they would say today, necessarily?
4I
DC: Yes, whether or not they would be valid requests.
5I
MJ: So my question goes back to you, at the time of this 32,
6 did yOu have in your possession anything from any of these witnesses
7 that the failure of him to!consider prejudices the substantial right
8 of your accused?
I
9 DC: Yes, Your Honor, at the time.
4
10 MJ: Okay, which one, or which ones? 4
11 DC: PFC England, Your Honor, as part of the--during the course 12 of the investigation----13I
MJ: Didn't he consider England's statement?
14I
DC: He did consider her statement, yes, sir.
15I
MJ: Is there anything--did you interview Private England, and
16 she said anything inconsistent with her statement?
17I
DC: I haven't been able to interview her, but, sir----
18I
MJ: I know she's now--but the question goes back to you, is
19 that he considered her statement, and now you're saying, that's the
20 same statement that tells you that she was going to be exculpatory.
21 So how is that prejudice that he considered the statement that you're
22 now saying--don't we have to talk about witnesses that he didn't
89 018257
1 consider, not ones he did? Do you understand what I'm saying? I
2 know this gets confusing if we're talking about negatives here. What
3 you're telling me is, is that he considered Private England's
4 statement, and that's the statement I'm using to show you that she
5 had exculpatory evidence for my accused. And of course, now we're
6 back into, well, he considered that then.
7I
DC: Yes, sir, but I wasn't able to--considering it and getting
8 the right to cross-examine witnesses, that's a right under R.C.M.
9 405. During this particular hearing, during the course of the
10 investigation, it was the government's position that the photograph
11 showing PFC England in an allegedly maltreatment pose, which was then
12 used by the government to establish evidence against the accused for
13 one of these charged specifications, said that she was forced to do
14 that by Staff Sergeant Frederick. For example, when I cross-examined
15 the CID agent, he said that she didn't look--and that's an area that
16 I was not able to explore with PFC England.
17I
MJ: But then now what you're saying to me is--but then now we
18 get into the speculative area. She might have said something that
19 might have helped you. You don't know.
20I
DC: Yes, sir, and that's what I wanted to have in order to
21I
enforce my client's rights under R.C.M. 405.
I
90 018258
(4,02 -COO '2_
4
1 MJ: No, but my point being though, CaptainIMOIMMOPis that, do 2 you believe that you're entitled to a new 32 based on speculative 3 evidence that might have come out had a witness been called? 4IDC: Well, sir, I think another would----5IMJ: No, if you answer that question, I'll let you go on. 6IDC: Well, sir, I can only make proffers to the investigating 7 officer based on information that I received. And I cannot----8IMJ: But you're not answering my question. You told me is that 9 England was relevant because she might have said something that might
10 have helped your client.
4
11 DC:I
Yes, sir.
I
12 MJ: That's what you just told me.
I
13 DC:I
Yes, sir.
I
14 MJ: And you think that's sufficient to show prejudice.
I
15 DC: Sir, I'm going to have a whole bunch more.
16IMJ: I' going to give you a chance to go through all of these,
6
17II m not cutting you short. I'm just trying to figure
CaptainI
18 out the legal principles here. We've got all the time in the world.
19 Don't worry about that. I'm just simply saying is that it strikes to
20 me is that's not the standard, as you may tell it. The standard is
21 not a speculative what might have been said, because you don't know
22 what she would say.
91 I018259
1IDC: No, sir.
2I
MJ: And so, do you get a new 32 based on something that nobody
knows what she would have said, or any of these witnesses?
4I
DC: And sir, that's the problem. That's one of the cruxes of
5 the problem, when we are not allowed the opportunity to cross-examine
6 the witnesses. In our system of justice, that's how we find the
7 truth. We don't look at things face value, one side of the events
8 without--in an antagonistic form.
9I
MJ: But it's very difficult for you to show actual prejudice
10 based on non-testimony, wouldn't you agree?
11IDC: Exactly, sir.
12I
MJ: You're saying, "My prejudice is a failure to possibly get
13 favorable testimony." That's what you're telling me.
14I
DC: On that particular witness.
15I
MJ: On those witnesses that did not testify that you have
16 nothing--now my question goes back, and let's move on from England.
t
17 On this lAt, who had testimony, who had evidence that you knew about
18 at the time that would have been at least arguably relevant that the
19 32 officer didn't have and that was not cumulative to what he did
20 have?
21I
DC: Detainees, detainees' statements.
22I
MJ: Okay.
92 I 018260
1IDC: As he mentioned, he did not even consider one of the
2 statements, which is a form of an alternative testimony allowed
3 under----
4I
MJ: Did you have those statements?
5I
DC: I did, sir.
I
6 MJ:. Did you have an option to give him those statements?
I
7 DC: Yes, sir, I did.
I
8 MJ: And you didn't do it.
9I
DC: I requested that I----
10I0,3:: No, you said----
11ISir----
W4)6a2:-
-
12ICaptain11.11 I only go with what you tell me. You said.
k4,3I
13 he didn't consider these statements and he should have.
14I
DC: He should have.
15I
MJ: And I'm telling you, is that you had an opportunity to hand
16 those statements to him and you didn't.
17IYes, sir.
DC:I
18I
MJ: And so it's his fault that he didn't reach out and grab
19 those statements from you?
20I
DC: No, sir, I didn't feel like the statements were helpful to
21 my case.
22I
MJ: Then how----
93I
018261.
DOD-041440
1IDC: Sergeant Frederick--in one of the detainee witness lists.
2I
MJ: Now, wait a minute. So he doesn't consider statements that
3 hurt your case, and that is now error.
4I
DC: Sir, this is a statutory right and a victim's statement, a
5I
victim....
6I
MJ: But you had the option to give him the statement.
7I
DC: Sir, that is not--for the purposes of the victims, the
8 statement and the conclusion of the defense was that that was an
9 inadequate form of testimon .
Y gg2-V7-"g2_
lo4MJ: No, Captaingillikokay, we're talking about on the 11 detainee list. Now we're back to just the detainees, is that you're
12 saying he didn't considtr their statements and it could help you.
13 Now, we don't need to beat this because this one to me is clear as a
14 bell. You had statements that you wanted him to consider. His
15 failure to consider statements not proffered by the defense in the
16 defense possession at the time is not error, okay? We don't need
17 to--I mean, I'm just talking about their statements. I'm not talking
18 about their unavailability, that's a separate issue, but their
19 statements, okay? For whatever reason, but I don't think you can
20 have it both ways, not give it to them and say, "Now, it's error for
21 him not to consider what I didn't give him."
94 I018262
1IDC: Sir, the statement, there is a large distinction between
2 giving him a statement and the alternative means of testimony
3 allowable under R.C.M. 405, which will further seek this as both a
4 full and an impartial investigation, email, IRC, all that was
5 available and should have been considered. And it's----
6I
MJ: We're moving on to something else. I'm simply addressing
7 the last issue that was simply your comment that he didn't consider
8 the detainees' statements.
9I
DC: Yes, sir.
10IMJ: And I'm saying is; you had full opportunity to provide
11 those statements to him, for him not to consider things the defense
12 had the option to give it to him is not error. I'm talking about the
13 statements, not the other forms of testimony, that's a separate
14I
issue.
15I
DC: Okay, sir.
16I
MJ: And then you obviously take issue on all the detainees
17 being unavailable.
18I
DC: Yes, sir.
19I
MJ: Now again, in that case, he applied the operational
20 situation, not just the 100 mile, because the prison is less than 100
21 miles away.
95
I018263
1IDC: Yes, sir, the defense conceded that we were under severe
2 operational constraints. That's why it spent so much time that it
3 did in the verbatim transcript saying, "Government, we need to start
4 looking outside the box. This is a full and impartial hearing. We
5 have to have this Article 32 investigation look like any other
6 Article 32 investigation in garrison or the United States."
MJ: I agree with that principle. Now, we talked about the
8 detainees. We talked about the co-accused.
I
7I
9 DC: Yes, sir.
4
10 MJ: Now, this whole other list. 4
11 DC: Yes, sir, General Karpinski, Captain----I
12 MJ: No, back up, what would General Karpinski say? At this
13 point, you have the Taguba report, I assume.
14IYes, sir.
DC:I
15I
MJ: And in the Taguba report, did General Karpinski make a
16 statement?
17I
DC: Yes, sir, she did.
18I
MJ: And how is that statement....
19I
DC: That was a classified statement. That was listed in an
20 annex and classified.
96
018264
1IMJ: Okay, so we'll move aside for a second on that. Based on
what General Karpinski had said that would have impact on your
3I
client.
4I
DC: Sir, General Karpinski, and how she would have impacted, is
5 in this. The defense is authorized under R.C.M. 405, they not only
6 talk about defenses, but any other relevant matters, which would
7 include extenuation and mitigation. General Karpinski was a brigade
8 commander for the brigade that Staff Sergeant Frederick was in at the
9 time. During the course of the Article 32 investigation, I offered
10 into evidence and discussed a joint regulation dealing with detainee
11 operations. In that regulation, it talks about theater command
12 responsibilities and to assign properly trained, specifically trained
13 forces to conduce these particular operations and detain--I believe
14 it's CI, the acronym escapes me right now. I have the regulation in
15 my file box. But what I wanted to gather from General Karpinski was
16 who was making this decision? Who made the decision, either, was it
17 your level or was it a higher level, to place untrained, non-law and
18 order MPs, which is an MP that Staff Sergeant Frederick is, a
19 different kind of MP that's supposed to conduct detainee operations.
20 There's two different MOSs. Why was that decision made and under
21 what circumstance?
22I
MJ: And what would she have said?
97I
018265
1IDC: Sir, it's my understanding from what she would probably say
2 was it was not her, but she would--who made that decision.
3I
MJ: So how is that testimony relevant then?
4I
DC: Sir, then that would have led us to the decision-making
5 process that did lead to that decision.
6I
MJ: And who was that?
7IDC: Sir, I haven't been able to speak with General Karpinski.
8I
MJ: Okay, you read her statement in the Taguba report that's
9 currently classified. Is it still classified, government?
4
10 TC: It is classified secret, Your Honor. 4
11 MJ: You've read that? I
12 DC: Yes, sir.
I
13 MJ: And I would assume you've read other remarks by General
14 Karpinski that have been in the unclassified media.
15IYes, sir.
DC:I
16I
MJ: Is there anything that she says that is at her pay level or
17 below that's responsible for this?
18I
DC: Sir, from her statements, it would seem that she is
19 implicating higher level commanders.
20I
MJ: Everybody but herself.
21I
DC: Yes, sir.
22I
MJ: So who was her commander?
I
98 018266
1I
DC: I believe she fell under either the CFLCC commander or
2 CFLCC or General Sanchez.
3I
MJ: But they're not on your list.
4I
DC: They're not on my list, no, sir.
5I
MJ: We've talked about----
I
6 DC: But this is the information that I--like you said before,
7 we have to go back to March 30th when this list was developed,
8 because I can talk to you about the prejudices that I've experienced
9 now.
10IMJ: No, but you need----
11IDC: For the purposes of my information----
12I
MJ: I understand that, but if General Karpinski came in and
13 testified on the 30th of March, and the best you can say is she's
14 going to say, "It's not my fault."
DC: Sir, that would have been speculation on my part during
16 that time.
17I
MJ: No, what I'm saying is, what you have now. Do you have
18 anything more than that, that she's going to say, "It's not my
19 fault"?
20I
DC: Sir, we would have been able to fully explore the
21 training--I also requested, it would tie into the document request
22 that I made.
99I
018267
1IMJ: I don't see a document request objected to here. Is that
2 in your other one? Okay, I got Karpinski. Tell me about anybody
3 else. And again, what I'm talking about here, Captain Shuck, is that
4 I understand that the Article 32 investigations perform a valuable
5 discovery function for the defense.
6IYes, sir.
.DC:I
I
7 MJ: I assume you understand that.
I
8 DC: Yes, sir.
I
9 MJ: Of course, it's very clear it's not an unfettered right to
10 discovery. You'd agree with that?
4
11 DC: What is that, sir? I
12 MJ: It's not an unfettered right to discovery.
I
13 DC:I
No, sir.
I
14 MJ: It's not like a civil trial in the civilian sector where
15 you subpoena everybody and just fish wherever you want.
16I
DC: Agree, sir.
17I
MJ: So I understand all that. But what I'm trying to get to
18 now, is the 32 now is done.
19IYes, sir.
DC:I
20I
MJ: Now, the question becomes is, what prejudice did your
21 client suffer by not having the 32 done considering certain evidence?
4
100 018268
DOD-041447
1 You've told me about General Karpinski. We've talked about the
2 detainees. We've talked about the people who invoked their rights.
I
3 DC: Right, sir.I
I (6 6) 2/V0)(26-1
4 MJ: On the rest of this list, and understand Captain
5 understand the difficulty here, because on the one hand, you've got
6 to say, if they testified, I could tell you what they would help you
7 with.
I
8 DC: Yes, sir.
I
9 MJ: But since they didn't testify, I can't.
4
10 DC: Yes, sir. 4
11 MJ: Unfortunately, for a pretrial investigation, to get a new
12 one, the standard is you've got to show me prejudice.
13I
DC: Yes, sir, I'm prepared to do that.
14I
MJ: Okay.
15I
DC: Sir, and I wish I had the two additional lists, but when I
16 was notified by the government of their live testimony, here, they
17 had four to five witnesses that I had reguestot4 of whichall,
18I
1111.1111I
andiglill.
And
19 I apologize if I'm mispronouncing their names, given cultural
20 differences. But sir, notice on the continuation sheet, block 21, DD
21 Form 451, Appendix F. The first sentence says, "The following
22 witnesses were declared unavailable for the Article 32 investigation
1014 018269
DOD-041448
1 and will more than likely be unavailable for the court-martial," per
2 the government, per the government's representation. So, how does
3 that prejudice the defense in this case?
4I
MJ: Well, first of all, we know that's not the law.
5I
DC: No, sir, it's not the law, but it's a prejudice, and here's
6 how it's a prejudice, sir.
7I
MJ: I'm assuming you're referring to the last part of that
8 statement, not the----
9I
DC: Yes, sir, and will be unavailable at court-martial. Sir,
10 I'm going back--if we go back and I say, "Look, it will be very
11 helpful to look at these witnesses," as I've gone through the report
12 and as I suspect the CID agent would have gone through it, the same
13 report, and listed out witnesses that would have been helpful. How
14 that actually prejudices the defense in this case is, we were told
15 that these are unavailable. And in fact, they mention not only the
16 operational constraints, but the security constraints of having these
17 particular witnesses because they were security detainees, not
„„
• t •
18 neceASarily tliat they were Alsk common riminals, but that they were
19 being held for other purposes, for purposes of national security.
20INow, if we're told back in March that our defense has, at
21 that point in April, our defense has to go other ways, our defense is
22 not going to be able to rely on witnesses, that we're told by the
102I
018270'
1 government are not going to be available to us. So, I have to, with
2 Staff Sergeant Frederick, reevaluate my defense position and
3 reevaluate our own defenses because of the government's
4 representation----
5I65)6 -2 1.(6)(.7kg
MJ:I
6I
DC: Which is a prejudice to our defense. I've got more, sir.
7I
MJ: I'm sure you do, and I will listen to everything you have
8 to say, but I'd like to break it up into bite-size pieces.
9I
DC: Yes, sir.
10IMJ: The 32 officer, it really doesn't make a difference where
11I
this line came from. It's not the law.
12I
DC: No, sir.
13I
MJ: You know it and I know it, that whether a witness is going
14 to show up for trial or not isn't determined at the 32, and certainly
15 not by a line officer.
16I
DC: Yes, sir.
17I
MJ: So you know and I know that that line isn't worth the ink
18 that was spilled to make it. So I find it difficult to think that
19 you're going to rely your whole defense, or at least a part of your
20 defense on something that's just not true, that you know is not true.
21I
DC: Sir, not based on the legal analysis, but on the 22 representations by the government as to why--because the witness did 103I018271
1 not--the investigating officer did not make the decision in a vacuum.
2 He made the decision based on advice and arguments from both the
3 government and the defense. During the course of those arguments,
4 the government made their representations that these witnesses were
5 security detaineel; salt of them were detainees, who were otherwise
6 unavailable.IZiN0A;)-Z
7I
MJ: CaptainII'm going to let you have a short break,
8 because I'm going to ask the government something. I'm going to let
9 you come back to it.
4
10 Trial counsel, you see this list of detainees here? 4
11 TC: Yes, Your Honor. I
12 MJ: Eighteen or so, I didn't count them.
I
13 TC: That's correct, Your Honor.
I
14 MJ: How many are testifying at trial, as of right now?
I
15 TC: As of right now, the government intends to call....
I
16 MJ: I don't need all the names. Some of these are going to
17 testify?
18I
TC: Right now, the government plans on calling about five to
19 seven of those detainees, Your Honor.
20I
MJ: Okay, and where are these five to seven detainees as we
21 speak? Are they still at the prison?
22I
TC: Some of them are, some of them have been released.
I
104 018272
DOD-041451
1IMJ: So this line about being unavailable for court-martial----
2I
TC: I don't know where that came from, Your Honor.
3I
MJ: And defense will have an opportunity to interview these
4 long before trial?
5I
TC: Yes, Your Honor.
6I
MJ: Let me ask you this, all these military witnesses, is there
7 any military witness that'the defense will request that has relevant
8 and necessary testimony that will not be made available by the
9 government?
4
10 TC: No, Your Honor. 4
11 MJ: And you're going to bring them to Baghdad? I
12 TC: We'll bring them to Baghdad.
I
13 MJ: And any civilian the defense wants that's relevant and
14 necessary, you will issue the appropriate invitational travel orders
15 and a fund cite?
16I
TC: That's correct, Your Honor.
17I
MJ: And you'll bring them to Baghdad.
18I
TC: Yes, Your Honor.
19I
MJ: Have you provided the defense with a witness list of who
20 you intend to call at trial at this point? Understanding that we are
21 not trying this case next week.
105I
018273
0)6) 2- j(b) ?.(P)
1ITC: In our initial discovery response, the government had made
2 representations of some of the people it intends to call. That is
not the complete witness list, no, Your Honor, nor the final one.
I
4 MJ: Captaini11111, who are Captain...Mr Major MEW,
5 captairmillf, Captain...Captain aIMIIUIN Who are all those
6 people? Are they a shot group or are they two different things?
7I
DC: They're different things.
8I
MJ: Just tell me, what does Captain 4111111,do for a living, at
9 the time?
10IDC: He was the platoon leader at the time. He was the platoon
11I
leader of....
12I
MJ: At the prison?
13I
DC: At the prison, yes, sir.
14I
MJ: And what was he going to say? Had you talked to him prior
15 to the 32?
16I
DC: No, sir, I had not.
17I
MJ: Did you have a statement from him prior to the 32?
18I
DC: Sir, he was listed in either the CID--he was listed in the
19 CID report as someone that would have been relevant to the defense.
20I
MJ: No, just go with me here, Captain."
21IYes, sir.
DC:I
106 I018274
1IMJ: Well, my question is, at the time of the 32, you hadn't
2 talked to this witness. My question is, is what, to your knowledge
3 at the time, was this witness going to say?
4I
DC: Sir, he wouldhave been able to give the investigating
5 officer, as part of his duties to givedus a full and fair impartial
6 hearing, would have been able to describe the particular training
7 that Staff Sergeant Frederick would have undergone in preparation for
8 this mission that he was at, with Abu. He would;have been able to
9 talk about the conditions at the prison during the relevant time
10 period. He would have been able to talk to us, since we did not
11 receive any documents, even today, regarding the relief in place that
12 Staff Sergeant Frederick's unit underwent and around September,
13 October timeframe, he would have been able to talk about what the
14 prior unit did and the right seat rides that every person, including
15 Staff Sergeant Frederick, would have an opportunity to conduct and
16 what the operations of the prior unit were like. He would have
17 been----
18I
MJ: And is he the only guy available to say this?
19I
DC: No, sir, but he would have been able----
20I
MJ: Did anybody testify to that effect‘ t -Othe 32?
21I
DC: No, sir, they did not.
22I
MJ: Was there any evidence of that at the 32? 107I 018275
DCI
N'o, sir .I
2IMJ: Did taptainIIIIIIIIIsay any of this stuff to you, or you're
3 assuming he knew this stuff because he was coming from----
4I
4 (416)2))(7k.)-2.-
DC: Sir, even if he did not, if he said he did not know, that
5 would have been helpful for the defense, and it would then help the
6 investigating officer----
7IMJ: In other words, you don't know what he would say.
8IDC: No, sir, I can reasonably assume that as a platoon leader
9 he would have that knowledge. And if they didn't conduct those
10 things, that would be very relevant in both extenuation and
11 mitigation for Staff Sergeant Frederick, and it would also be very
12 relevant for determining who the investigating officer should.
13 Because sir, all we have at this time, if we could take a step back
14 to March 30th of this year, all we had, if it was given, was the CID
15 report. That was it. So that's why I had unnamed people like S3 of
16 the 320th MP Battalion. Because I know as an Army officer that an S3
17 would have a reasonable understanding of both the training of the
18 unit, which is why I was requesting him. And it would also be
19 reasonable to assume that the S3 for this battalion would know about
20 the operations and would have, either, if he could not provide me
21 documents, he would have knowledge of the documents that have since
22 been destroyed or misplaced.
108I 018276
(6-V 2 -OM
1IMJ: Is that Major 11111.
2I
DC: No, sir, that's-11MM was acting Battalion Commander.
3I
MJ:. Okay, well, he invoked his rights.
4I
DC: Yes, sir, he did.
5I
MJ: No issue about his unavailability.
6I
DC: No, sir.
7I
MJ: And the S3 is by position. I understand your logic there.
8I
DC: And understand, sir, that if you look at this, it's only
9 listed as S3's 320th because I did not know who the S3 of the 320th
10 was. And the government, through its own lack of due diligence,
11 could not provide me with who the S3 for the 320th is. Still to this
12 day, we do not know who the 320th----
13I60602_ 4)(71.0
MJ: What about111111,I
14I
DC: Sir, these are all Judge Advocates.
15I
MJ: What are they going to say?
16I
DC: Sir, as part of the allegations and as part of government's
17 closing arguments in this case, the Geneva Conventions kept on
18 popping up during the course of its arguments. These three officers
19 were present at the prison during the relevant time periods and will
20 be able t --through once again, because I only have the CID report, 2
21 days--provided to me, one week prior to the investigation and taken
22 into account----
4
109
018277
DOD-041456
1IMJ: Did you ask for morettime to prepare?
2IDC: No, sir, I can rdasonably assume that the documents and the
3 evidence that I request are going to be made available. Because Your
4 Honor, if you look through the--I promptly made my request, and there
5 was not defense--or government request for a delay, even though I
6 made a point in my argument, verbatim, that we were amenable to
7 delays on the defense in order to provide these documents. But at
8 the time----I
(-4
-2/6)(110
MJ: Back up, back up. Soll1111,111111 andiMillirwere Judge
10 Advocates?
11IDC:I
Yes, sir.
12I
MJ: And you didn't know what they would say because you hadn't
13 talked to them and had noi.statements by them.
14IDC: That's right, sir, but I could reasonably----
15I
MJ: And there's some legal argument here about the Geneva
16 Convention that you thought was going to help with your client.
17IYes, sir.
DC:I
18I
MJ: And what was that?
19IDC: Sir, I could talk specifically about the training of the
20 unit. I could have them talk about what kind of training, if any,
21 was present. I could also talk about, because as part of the
22 document request and the CID packet, one of the documents that I
4
110 018278
DOD-041457
(44)zisw we9
1 looked at was a document when they were two--I believe it was Captain
2I
who created the document, mentioned that----
3I
MJ: The Captain alli
4I
DC: Sir, the representation is that----
5I
MJ: Let me go back. You kind of drifted off on this. Let me
6 just get--these three JAGs will say something about the Geneva
7 Convention that it does or does not apply?
8I
DC: Yes, sir, and specifically with the incidents of alleged
,
9 maltreatment, whether or not those will rective the legal ieview.
10 Because it's part of the jobs of the Judge Advocates at the prison to
11 the defense's knowledge at the time, was that they were a kind of
12: checkpoint. They would be advising on the legalities or illegalities
13 of certain procedures, and that would be very relevant, even if----
14I
MJ: Did you call any of these guys up to see what they would
15I
say?
16I
DC: Sir, I've made attempts to contact both captaill11111,and
17 another Judge Advocate. Since then, I have not been----
18I
MJ: And again, I sympathize with the box you're getting in 19 here, Captain 11011111 20I
DC: Yes, sir.
21I
MJ: But we're getting into the area of, "They might have said
22 this was okay," is the best you can tell me.
1114
0/8279
1IDC: Sir, anything they told me, if it's not okay, or if it's
2 okay.: If they said it's not okay, then that assists the full and
3 fair investigation tha4 I requested.
4I
MJ: Is it appropriate for a witness to opine on the legality of
5 a particular act, even at an Article 32?
6IDC: Sir, that would not only go to a defense of the "just
7 following orders" defense, but it also goes to clearly extenuation
8 and mitigating, if per chance, members of the chain of command,
9 including Staff Sergeant Frederick, were to obtain legal advice.
10IMJ: That wasn't my question. My question was, is you want to
11I
call these guys as witnesses.
12I
DC: Yes, sir.
13I
MJ: And they would say whether or not this was legal or
14 illegal. And what I'm saying is, is that an appropriate testimony,
15 even at an Article 32?
16I
DC: Yes, sir, it is.
17I
MJ: Well, then why don't at every 32 you call about four of
18 your defense compatriots to say, "In my opinion, this isn't illegal,"
19 and the government call three attorneys and say it is illegal. Well,
20 let me just carry through this thought. That's irrelevant.
DC:I
21IYes, sir.
112 I018230
DOD-041459
1IMJ: It's not proper testimony at a 32. The 32 officer is
2 supposed to determine facts and arrive at appropriate conclusions.
Opinions as to whether or not the underlying misconduct is a crime or
4 not is no more appropriate at a 32 than it is somewhere else.
5I
DC: I agree, sir, and that's not what I mean, and I apologize
6 for getting you down that train of thought.
7I
MJ: What I'm saying is, the problem I get here, you don't know
8 what they would say. They might have helped you, they might not
9 have. Or under your theory, they couldn't hurt you.
10IDC: They couldn't hurt us either way, no.
11IMJ: And if they came in and said, "We knew nothing about this.
12 We specifically briefed all these people that this was illegal," then
13 how does that help you?
14I
DC: Sir, if they said they know nothing about it, that would go
15 back again to extenuation and mitigation because then they would be
16 admitting that they weren't properly providing oversight of the
17 operations at Abu Ghraib Prison.
18I
MJ: And that's the JAG's function?
19I
DC: Sir, per the documents that the government provided me,
20 they were to provide the kind of legal review of all of these
21 operations, so that's what makes it relevant----
113I 018281
W4k.79(6.,00-
1IMJ: Captainillillirthough, is that in this Army, that's the
2 commander's function.
3IDC: Yes, sir.
4IMJ: There may be legal reviews. There may be JAGs floating
5 around there, but the----
6I
DC: And that's why I listed the commanders.
7IMJ: These ICRC representatives, of course, there's no names on
8 them, so I just assume you don't know who these people are?
9IDC: Sir, that is correct.
10IMJ: Do you know what they would say? How would you know what
11 they would say?
12IDC: Yes, sir, I do know what they would say.
13IMJ: How would you know what they would say?
14IDC: Because the ICRC, there was an ICRC report that was
15 included in the CID packet that was provided to the defense.
16I
MJ: And that helped you?
17IDC: Yes, sir. Part of that----
18IMJ: And there's no names in this report?
19I
DC: There's no names. That's why I had--ICRC representatives
20 conducted an investigation of the prison, and it was during the
21 applicable timeframe, October--September, October----
1144 018282
DOD-041461
1IMJ: And there's statements in that report that will be
2 helpful----
3I
DC: Yes, sir, there's things in the report that put on notice
4 to the government, specifically to the chain of command there, that
5 there were problematic things going on.
I
6 MJ: Okay, but did you give that report to the 32 officer?
I
7 DC: No, sir, I couldn't.
I
8 MJ: Why not?
I
9 DC: Because I did not know, as a representative of the defense,
10 who that person was. I asked the government to pursue due diligence
11 in determining who these ICRC representatives----
12I
MJ: The report would imply to me as something with an official
13 stamp on it or some indicia of where it came from, true?
14I
DC: Yes, sir, the Red Cross.
15I
MJ: Yes, I figured that out by the ICRC.
16I
DC: That's why I put all that I could and I referenced--and
17 they knew what I was talking about.
18I
MJ: But you could have given the report to the 32 officer if
19 you wanted to.
20I
DC: Sir, that was the problem with this particular ICRC report.
21 It mentioned--it was more like a notification to the government that,
115 4 018283
1 "Hey, there's some things going on. We have prisoners without
2 clothes." That's one of the allegations.
3I
MJ: Well, you don't answer my question. Why didn't you just
4 give it to the 32 officer if you wanted them to consider it?
5I
DC: Well, sir, that was helpful, but it's really the
6 representatives--it would have been more helpful----
7I
MJ: Maybe, maybe.
8I
DC: ----to delineate what exactly----
9I
MJ: How do you know it will be more helpful, not more hurtful,
10 since you never talked to these people? Because you knew what they
11I
were, I understand.
12I
DC: Yes, sir, and that was the problem.
13I
MJ: But you could have given the 32 officer the report.
14II
DC: Which would not have been helpful enough, because what
15 was working with was----
16I
MJ: You saw the report as a starting point.
17I
DC: Yes, sir, it was just merely a starting point and we needed
18 to fully analyze this because if the government was put on notice
19 that there was nudity issues back in October, then that lent support
20 to at least to extenuation and mitigation that----
21I
MJ: Is notice to the chain of command that soldiers were
22 potentially committing a crime somehow a legal defense?
116 I018284
1IDC: Sir, I would further exploit--see, I can't hit a homerun
2 with any particular witness. That's rarely the case in a court-
3 martial or 32 investigations. But what I can do is take particular
4 facts and tie them to other witnesses' testimony. For instance, I
5 get the ICRC representative in here. They tell me particular facts
6 with this report with the nudity, for example, and then tie that back
7 to either the platoon leader, General Karpinski or the acting
8 battalion commander and I say, "Okay, you were given this report.
9 What steps did you take, or did you further...," I mean, I can sit
10 here and speculate exactly with everything, but with this particular
11I
fact, that's the kind of thing----
I
12 MJ:I
But see, what we've talked about here all this time
13 strikes to me as discovery issues. "This person could say this.
14 This person might say this. This might help me when I get it with
15 this person. I don't know what this person may say, but this JAG may
16 say I knew this," so it's all speculative. And I'm not denying you
17 have a discovery component at the 32. The failure to get absolute
18 100 percent discovery at the 32 is not substantial error.
19I
DC: Well, sir, I turn to the Ledbetter case that we cited in
20 our motion. The Ledbetter talks about a key prosecution witness.
21 And frankly, sir, they've since added to the list that was denied
22 earlier. But in the Ledbetter case, it says that, "The particular
117 I018285
1 sergeant that was denied at the Article 32 was the key prosecution
2 witness in this case, and hence its testimony and the accused's
3 statutory right to cross-examination were crucial in order to forward
4 both the investigation officer and the convening authority sufficient
5 information to fulfill their statutory duties." Sir, we would----
6 *2M14):(6)-Aptain111111 I don't have Ledbetter sitting in front of
7 me. Let me ask this, what was the offense in that case?
8I
DC: I don't remember it, I get confused with the Garcia case.
9 (Pause.] Larceny of government property and conspiracy to commit
10 larceny.
11IMJ: And who was the person that didn't testify?
12I
DC: Sir, I believe it was the victim, but I'd have to sit here
13 and read it.
14I
MJ: But I'm saying, in this case, the 32 officer had, and
15 again, I'm not talking about discovery. What the 32 officer had were
16 statements of co-accused. Did Sergeant Frederick make a statement?
17I
DC: No, sir, he did not.
18I
MJ: In statements of co-accused, which at least on their face,
19 cor.roborated the photographic evidence, true?
20I
DC: No, sir, it did not. During the course of the Article 32
21 investigation, I was able to cross-examine the sole CID agent
22 witness, and I could go right back to that. Despite the government's
118 018286
1 motion and their characterization of that evidence, I have to
2 respectfully say that they did mischaracterize the evidence. The
3 statements that if the co-accused were discredited by me on cross-
4 examination of the CID agent. It's even in the summary of the
5 report, although I did not have cross-examination of PFC England
6 because she was declared unavailable. They say that there was
7 substantial photographic evidence admitted. Sir, there was
8 substantial photographic evidence admitted, but when we discussed
9 that there were only Iwo photographs of Staff Sergeant Frederick in
10 any of the photographs, one of where Staff Sergeant Frederick was
11 sitting on a detainee without any context. The CID agent, because he
12 was not an eyewitness or anything, could not offer any testimony as
13 to what that picture----
14I
MJ: On your denied witnesses, were any of them a witness that
15 could put it in context?
16I
DC: The victims themselves, sir. PFC England could have
17 possibly, on one of the pictures which--it was a picture of PFC
18 England pointing at a detainee----
19I
MJ: But if he found the detainees reasonably unavailable and
20 applied the correct standard to them, then is there error there?
21I
DC: If he did that, yes, sir.
22I
MJ: I mean, that's kind of the first part of the test.
119
018287
1IDC:I
Yes, sir.
2I
MJ: And England, similarly, if he had found her reasonably
3 unavailable as invoking, even though technically she may not have, I
4 understand that, he considered her statement. So they had those
5 statements. But he said he didn't even consider the detainee's
6 statement. I thought we already talked about that.
7I
DC: So if that's the case----
8I
MJ: So I don't understand what you're saying, is that you had
9 statements of the co-accused. You had hearsay from the CID agent of
10 talking to people.
11IDC:I
Yes, sir.
12I
MJ: And you have the photographic evidence.
13IYes, sir.
DC:I
14I
MJ: So he had a reasonable basis for his conclusion.
15I
DC: No, sir, no he wouldn't have had. He would not have had a
16 reasonable basis.
17I
MJ: Well, that's not your objection.
18I
DC: My objection was there was no--if you look at the
19 overwhelming photographic evidence clearly depicting detainee abuse,
20 the evidence that was presented did not suggest that at all. They
21 corroborated, they attempted to corroborate the co-accused's
22 statements, which are questionable anyways because they're co-accused
120
I018288
1 and would always want to blame superiors. But they point it at these
2 statements as corroborating the particular photographs that were
3 admitted into evidence over defense objection. And why? Because
4 when you go through the statements, okay, PFC England did such and
5 such. Well, that doesn't look like it in any of these photographs.
6 They say that Frederick is in here. Well, Frederick, as I went
7 through----
8I
MJ: Isn't that just a weight test? It's not an admissibility
9 test. It's just a weight test that the fact finder made. It's no
10 different than at a trial. The members at a trial see evidence.
11 They conclude that is so and so or that's not so and so. So what
12 you're saying is, he weighed it in a way you didn't like it, but he
13 did have----
14I
DC: Well, I agree, sir, but the whole point of my argument is
15 that the government felt it important to show you that these facts
16 that they outlined in their response show why it was a full and
17 impartial investigation, and it was not, clearly by the
18 investigation, itself. And so, I wouldn't be arguing this, sir, if
19 the government's whole position was that these weren't--that they had
20 to characterize the evidence in a certain way in order to somehow
21 convince this court that it was a full and impartial investigation.
22I
MJ: Standard substantial compliance.
121I01.8289
1IDC: Substantial compliance with R.C.M. 405.
2I
MJ: Trial counsel, was there any evidence at the 32 about
training, SOPs, command involvement? (6 fiog-iy-c-)
I
4 TC: SpecialistIwho was part of the same company
5 as the accused did testify. And he testified as follows from the
6 summarized transcript. This is page 17 of 20 of the summarized
7 transcript. "I had very little training. They only told us how to
8 do counts, how to handle certain situations. We did tag team with a
9 couple of soldiers who we replaced to see how things worked out. I'm
10 not aware of any policies or SOPs. We counted the prisoners at least
11 once per night." Then he goes on and talks about some of what
12 happened in the prison, itself. And then he goes on to implicate the
13 accused. "I saw Staff Sergeant Frederick, Sergeant Davis and
14 Corporal Graner walking around the pile hitting the prisoners. I
15 remember Staff Sergeant Frederick hitting one prisoner on the side of
16 the ribcage. The prisoner was no danger to Staff Sergeant Frederick.
17 They were still flex-cuffed and sandbagged. I left after that. I
18 returned later because someone wanted me to get Staff Sergeant
19 Frederick for something. I went down to Tier 1. When I looked down
20 the corridor, I saw two naked detainees, one masturbating to another
21 and the other one with his mouth open." Skip a few lines, it says,
22 "I saw Staff Sergeant Frederick walking towards me and he said, 'Look
122
018290
DOD-041469
(b..)?-g(2)
1 what these animals do whenI
leave them alone for 2-seconds.' I
7Iwe just kind of stopped going through your
MJ: CaptainI
2 heard PFC England shout ouI'He's getting hard.'"
So Specialist Mlle he's part of the company, testified
4 about SOPs. He testified about the left seat, right seat ride that
5 defense counsel just mentioned, and then went on and implicated the
6 accused in the misconduct as charged. 6 .6)(*)
8 list. So let me just finish with that. The second group beginning 9 with Sergeant UMW (46) 2_,(6) 7(a) —2__
o4DC: Say again, sir? 11IMJ: I was looking on page two now, the lower, the last 12 detainee. 13I
DC: Yes, sir.
(4) z 6)(7,(c)
I
14Ito be--let's just talk about, what does
MJ: These app
15 SergeantIo for a living? Do you know?
16I
TC: He's one of the dog handlers, sir, at Abu Ghraib. He had
17 PCSd back to Fort Bragg, or not PCSd, redeployed back to Fort Bragg.
18I
MJ: Is he implicated in this at all in what is charged with
19 Sergeant Frederick?
20I
DC: Not that I'm aware of. He is not yet a co-accused.
21I
MJ: I understand that dog handlers may have their own issues.
22 But dog handling issues are not present in this case, are there?
123
018291
DC: No, sir.
2I
MJ: I mean, some of these charges are really generic and it's
3 kind of hard to----
4I
DC: Yes, sir.
I
5 MJ: And who is Mr.I(AA 3
6I
DC: 411111 sir?
7I
MJ: 1111111 It saya CACI Corporation.
8I
DC: Yes, sir, he's one of the contract interrogators.
9I
MJ: Did y.sou have a statement from him?
10IDC: No, sir.I
(.4-) 2 16)
11IMJ: And I understand your position here, Captain Mg I don't
12 mean to keep repeating myself. But I understand there's difficulty
13 in saying, "I need this guy, without knowing what he's going to say.
14 And then I don't know what he's going to say until he shows up." So
15 I understand that:. And all the others are CID agents involved in the
16I
case?
17IYes, sir.
DC:I
18I
MJ: Now, of those CID agents, I'm assuming as investigators
19 they're not firsthand witnesses to anything except potentially taking
20 statements?
21I
DC: Yes, sir, and the scope and context of their investigation,
22 which would have been helpful to see whether or not the CID report
124 I018292
DOD-041471
1 was full and impartial. The government felt that at least one of the
Ce)(4) .0)I
2 CID agents who had a very small part in the investigation was highly
3 relevant and necessary for the conduct of a full and impartial
4 investigation. The defense only felt that we should have the rest of
5 the CID agents, including at least Special Agent NMwho wrote /
6 the report on the CID as more relevant given the fact that the
7 government felt 0.nd the investigating officer felt that their
8 testimony was both necessary to conduct their statutory obligations.
9I
MJ: And you had access at the time to the Taguba report. Is
10 that correct?
4
11 DC: No, sir, not at the time, after----I
12 MJ: But before it closed.
I
13 DC: Before it closed, yes, sir. That was the only document to
14 my knowledge that was listed. And we've only talked about witnesses,
15 not yet documents.
16I
MJ:' But in the Taguba report, I'm going back to the S3, Captain
Z-
17Iissue where you said they would come in and tell you the
18 traditions, the training, the experience, the command climate, the
19 command control or lack thereof of all five of those, four of those
20 categories. And of course, I can only decide cases on what I have on
21I
each case.
22I
DC: Yes, sir.
125
I018293
DOD-041472
1 IMJ: Did the Taguba report reference any of that stuff?
I
2 DC: Yes, sir, it did,
I
3 MJ: Extensively?
I
4 DC: In the first 55 pages, I believe was the scope of the
5 report and then it had several hundred pages----
6I
MJ: So what I'm saying is----
7I
DC: ----but it did mention that it----
8I
MJ: ----it may not have been the best option, but you did have
9 an option to provide the evidence from 111111.1and the S3 through the
(4)0)Zja3P,k)
10 Taguba report as far as training and command climate.
4
11 DC:I
Yes, sir.
I
12 MJ: I got it. Now you want to talk about documents.
I
13 DC: Yes, sir. The defense made numerous requests for documents
14 under R.C.M. 405 and later under R.C.M. 701, the same request.
15I
MJ: Let's talk about the ones you didn't get for the 32 that
16 prejudiced your--and I understand prejudice can be a cumulative
17 thingt ;
18IYes, sir.
DC:I
19I
MJ: So I'm not, although it may sound like I'm piecemealing
20 this, really, I'm not. Mentally, I'm keeping it altogether.
21IDC: Yes, sir. Roger that. I mentioned in here that the
22 defense had learned that there was a parallel administrative
126
018294
1 investigation conducted of the entire chain of command. I did not
2 know that was the Taguba report, but that's, in fact, the Taguba
3 report.
4I
MJ: Okay, so that's OBE.
5I
DC: And that was OBE, yes, sir, such as the investigation would
6 be held there. The defense requested any and all documents related
7 to administrative investigations be produced at the Article 32
8 investigation, that we got, to include this investigation, any
9 memoranda or other documents appointing that investigation, recent
10 OERs and NCOERs of the accused's chain of command, situational
11 reports, SIGACTS related to the events surrounding the charges facing
12 the accused. And I was going to later put it as an appellate exhibit
13 for one of my discovery documents, but you can follow along, sir, if
14 you wish.
15I
MJ: No, I'm listening.
16I
DC: Situation reports, SIGACTS related to the events
17 surrounding the charges facing the accused, public affairs
18 notifications surrounding the charges facing the accused, any
19 administrative actions taken against any of the accused's chain of
20 command, any awards and supporting documentation given to members of
21 the accused's chain of command. In addition to the administrative
22 investigation, the resulting reliefs for cause or other adverse
127 I 018295
1 administrative actions, the defense requests the following documents
be produced at the Article 32 as they relate to the charges the
3 accused faces: any or all significant activity reports from the 372d
4 MP Company and/or 800th MP Brigade during the applicable timeframe,
5 any and all OPORDERs from the 372d MP Company and/or 800th MP
6 Brigade, especially those surrounding the relief in place that
7 occurred in October 2003, any and all legal opinions, etceteras,
8 generated from the 800th MP Brigade Judge Advocate or its equivalent
9 office regarding training requirements, regulations governing
10 detainee operations and law of war, EPW detainee confinement
11 facilities, any and all applicable copies of training SOPs, post
12 notifications, etceteras, regarding how MPs were to conduct detainee
13 operations, OPERDERs, SIGACTS, FRAGOs, or other similar documents
14 related to ICRC visits of the prison during the applicable timeframe.
6 2-0) )-z
15Iho long is that document?
MJ: CaptainI
16I
DC: Sir, this document is ending in about two sentences.
17I
MJ: Because I'm going to start reading in a minute, but go
18 ahead.
19I
TC: It's also attachment one to the,government's motion. It's
20 also part of the Article 32 investigator's report.
21I
MJ: Okay.
128 I018296
1IDC: OPORDERs, SIGACTS, FRAGOs or other similar documents
2 related to ICRC visits of the prison during the applicable timeframe.
3 In addition to the following documents, the defense requests the
4 following personnel, and therefore, I went into the listing of the
5 victims.
I
6 MJ: Well, this looks to me like a discovery request.
I
7 DC: Sir, under R.C.M. 405, there is a----
I
8 MJ: I didn't say that. You're jumping ahead of me here,
9 Captain OM I'm simply saying it looks to me like a discovery
C6Ai -2_ (6) 7t) -2_
10 request, which tells me you don't have this stuff, at the time.
4
11 DC: That's right, sir, I do not have it. I
12 MJ: Have you had it since then, some of it?
I
13 DC: Sir, I have received some of it, but as of today, I----
I
14 MJ: Out of this entire list, is there anything there that if
15 you had it at the 32, it would have made a difference?
16IYes, sir.
DC:I
17I
MJ: What?
18I
DC: If I were to have the legal opinions, I would have been
19 able to cross-examine those witnesses that were available.
20I
MJ: And what would these legal opinions say?
21I
DC: I don't know, sir.
129I 018297
1IMJ: That's what I'm asking though. Of those documents you've
2 been provided, had you had them .at the time of the 32, would they
3 have been----
4I
DC: Sir, the SIGACTS, there was significant activity reports
5 generated by the prison during the applicable timeframe.
6I
MJ: Yes, but what I'm saying, what does that have to do with
7 anything?
8I
DC: Sir, that puts this--as R.C.M. 405 indicates, we could put
9 in those things that would matter for the defense in extenuation and
10 mitigation----
11IMJ: Well, I understand that, but what's a SIGACT report, what
12 is a SIGACT report under your understanding?
13I
DC: Sir, a SIGACT report would report the significant
14 activities occurring at the prison.
15I
MJ: Hence the name.
'16I
DC: Hence the name, which would have given the defense at the
17 time the ability to talk to specialist1111111 and.... 6:4)2;5);10.)--2.—
18IDid something
MJ: And what would you ask specialist/111111h
19 significant happen at the prison that day? Isn't this just a
20 standard police report, law enforcement report that goes through the
21 chain of command if something big happens, and all it does is simply
22 repeat, that it's found somewhere else?
130
I018298
DOD-041477
1IDC: Well, sir, there's a lot of things that the SIGACT reports
2 could be helpful for us. For instance, it would place into context
3 the situation at the prison, which would include the frequent mortar
4 attacks that were occurring during this applicable timeframe. It
5 would also talk about----
MJ: Did the Taguba report address that?
7I
6I
DC: I don't recall, sir.
8I
MJ: Trial counsel?
9I
TC: As far as....
10IMJ: Did the Taguba report reference the conditions at the
11 prison in terms of the operational difficulties with rocket attacks
12 and mortars, things like that?
13I
TC: I believe it did. Off the top of my head, I could not cite
14 the particular passage, but I believe it did, sir.
15I
MJ: Go ahead. Do you have any more you want to add in there?
16I
DC: Yes, sir. With the significant activities, it would also
17 talk about the Ganci riot that may--there wca a riot occurring on the
18 one part of the prison during the applicable timeframes of these
19 allegations which would have placed into context and would have been
20 helpful had I gotten other witnesses so that we could tell the
21 investigating officer, "Look, this is the context in which all this
22 was going on." That would have been helpful. The legal opinions,
1314
018299
1 had they--if they exist, I don't know if they exist, but they would
2 have shed some light on whether or not the particular methods of
3 interrogation were approved by not only the Judge Advocates present
at the prison, but also the chain of command, which although--
(b)L-2 (c)
5Ihold on a second. Are there in existence
MJ:, CaptainI
6 legal opinions as to the appropriate interrogation techniques that
7 are authorized, that were authorized during the relevant time period?
8I
TC: From the 800th MP Brigade? Not that the government's aware
9I
of.
10IMJ: No, from CJTF-7 on down.
11ITC: As of right now, I am not aware of any.
12I
MJ: Are you aware of any SOP, any----
13ISOP, yes, sir.
TC:I
14I
MJ: An SOP of how to treat detainees?
15I
TC: And interrogation techniques, yes, sir.
16I
MJ: That was in effect last fall?
17I
TC: Yes, sir.
18I
MJ: And who promulgated that SOP?
19ITC: General Sanchez, sir.
20I
MJ: And you suspect he had a legal review on it, also?
21I
TC: I would imagine, but I have yet to see any legal review of
22 that document.
132I018300
1 MJ: Do you have a copy of that document?
2 TC:- I do,Isir.
3 MJ: Have you provided it to the defense?
4 TC:. It's for access up in our C2 section;Iit's a secret
5 document.
6 MJ:' Was there any lower level SOPs or anything what to do with
7 these guys?
8I
TC: From the Taguba report, there was the unclassified SOP for
9 interrogations that was put up on the wall that the government has
10 since learned it was promulgated by Captain...1
11IMJ: The mysterious Captained& who may not exist?
12I
TC: The mysterious Captain all that's correct, Your Honor. 13IMJ: Is there a Captainillia 0-2 14I
TC:- There is a CaptaidIIIIII Your Honor.
15I
MJ: Where is sAe?
16ITC: In the United States. I believe she is represented as
17I
counsel.
18IMJ: What was her role at the prison?
19I
TC: Her role, she worked in the JIDC, or the Joint
20 Interrogation Debriefing Center.
21I
MJ: Is she an MI officer?
22I
TC: She is, sir.
133
I018301_
1IMJ: And she put out some SOP?
2I
TC: Yes, she did, Your Honor.
3I
MJ: And this was posted on the wall?
4I
TC: It was posted on the wall.
5I
MJ: What did the SOP say?
6I
TC: It listed certain interrogation techniques, Your Honor.
7I
MJ: Did any of those interrogation techniques include what
8 Sergeant Frederick is charged with?
I
9 TC: Not at this point, Your Honor, no.
4
10 MJ: Do you have a copy of that? Is that a tlassified document? 4
11 TC: I do not believe it is, Your Honor. I
12 MJ: You may or may not is what you're telling me. Your look
13 tells me...make sure he gets that:
14I
TC: Okay.
15I
MJ: And all related cases, obviously.
16I
TC: I mean, this obviously has been floating around.
17I
MJ: I understand. I understand.
18ITC: Yes, Your Honor.
666;La)0,0,(d Z---
19I
MJ: Captaining.' I interrupted you. We were talking about
20 all the other stuff you didn't have.
21IDC: Yes, sir. Wh'at's that, sir?
22I
MJ: I said, do you have anything to add?
134
018302
1IDC: Well, sir, with that, gives a perfect example. As we all
2 know as lawyers when given posted examples, now that we know the
3 timeframe, although the government denied her existence, she did in
4 fact exist, and that we do know that the SOPs that I did request did
5 exist at the time and were readily available for the government, but
6 through their lack of due diligence did not provide the defense. I
7 could have then cross-examined or at least presented argument to the
8 investigating officer on these documents. I could have used the
9 information, because when you have a set of rules, when you do
10 something--if they're broad or narrow, then what do soldiers and
11 commanders do? They seek legal advice.
12I
MJ: Captain...1 in this SOP you're talking about with 13% Captain"... making?I(LP-2A(*) 14 TC: Your Honor.
Yes,I
15 MJ: Allegedly posted on the walls at the prison?
16 TC: Your Honor.
Yes,I
17 MJ: Have you looked at this document?
18 TC: Your Honor.
I have,I
19 MJ: Do you have a copy of this document?
20 TC: Your Honor.INo,I
Once again,I
I do,IHere? Your Honor.Iit's
21 up in the Joint Interrogation Debriefing Cell here.
22 MJ: Is it a classified document?
135 I018303
1ITC: Not that I'm aware of, Your Honor, but they do have it.
2I
MJ: Is there stuff on there that's unauthorized? Is there
3 anything on there that the command saw and said, "This is wrong.
4 We're not going to do this."
5I
TC: Not that I'm aware of, Your Honor, at this time. I don't
6 want to speak to definitively, because I have thought about--all I
7 know is that I've seen that document and I do know that it was posted
8 on the wall at Abu Ghraib. Past that....
I
9 MJ:I
I find it difficult to consider if a document was posted
10 on a wall in a prison that somehow it's a classified document.
11ITC: I agree, Your Honor.
12I
MJ: I mean, the goArnment knows if it's classified or not, but
13 that strikes to me as even a stretch, even if----
14I
TC: I'm just being careful because I'm not sure what the
15 classification is. I do not have a copy here. The copy is with our
16 C2 cell here on Victory Base.
17Ia)) qtrd--7-
MJ: Okay, thank you. 600,2),-,
18I
DC: Sir, with th-at-, it had come to the defense' s knowledge that
19Idid witness an event with a naked detainee at the
CaptainI
20 prison. And it would have been helpful to have questioned her when
21 she received this. And as being a Judge Advocate for the command,
136 I018394
1 what steps were taken at that particular time and when she
2 particularly saw that.
3I
MJ: And again, when did you become aware that that's what she
4 would say?
5I
DC: Sir, not until the past couple weeks. But that's something
6 I foresaw because I knew that the command would have been intimately
7 involved in these kinds of interrogations, and that's why I requested
8 them at the time. Now, as far as--so that's why I was making those
9 particular requests and why I felt, why I foresaw that there was
10 probably some guidance and it was probably posted on the walls, which
11 the government just admitted it was posted on the walls. So all it
12 took was for the government to go through some due diligence, but
13 their read of the rule was, we just have to put on a bare bones case.
14IAnd according to Garcia, the case they even cited, that's
15 not the standard. The Garcia case specifically says that it is not
16 the government that controls the Article 32 investigation, but rather
17 the investigating officer making charged with making a thorough and
18 impartial investigation in the form and substance of the charges,
.
19 which includes examination of available witnesses requested by the
20 accused. And I might add, sir, that that also, under R.C.M. 405,
21 that includes available documents. And this was a document that the
22 defense felt was relevant to our defense at the Article 32, which
137 I018305
1 would have assisted the investigating officer at the time, which the
2 government now concedes does exist and was present, but through their
3 lack of due diligence, did not provide, nor through the various
4 requests that the defense made for the investigating officer to
5 request that the government pursue due diligence and gain these
6 relevant documents.
7INow, why would the defense request OERs, NCOERs, awards,
8 adverse administrative actions? Sir, once again, it goes to
9 extenuation and mitigation. If we were to show to the investigation
10 officer, look this is what--according to the Taguba report and the
11I
15-6----
12I
MJ: Which he had.
13I
DC: Which he had, these are the following things that took
14 place against these particular individuals within the chain of
15 command as a result of the allegations that my client is facing.
16I
MJ: And that's extenuating to have.
17I
DC: Sir, that shows that although they would have had
18 culpability and that the government shows, in those particular cases,
19 to pursue an adverse avenue, which would----
20I
MJ: A less adverse avenue.
21I
DC: What's that, sir?
22I
MJ: They chose a less adverse avenue.
138
I018306
1IDC: Yes, sir, a less adverse avenue.
2I
MJ: Because we argue that they're not stationed the same--
3 that's okay. But I come back to the idea, is that you had that
4 thing. See, I don't understand your argument. Although you may not
5 have had the reports themselves, you had the Taguba report that says
6 these people got relieved.
7I
DC: Yes, sir.
8I
MJ: So what you're saying--so he had that. You just didn't
9 have the nitty-gritty details.
10IDC: The nitty-gritty details, which would have been----
11IMJ: Clear, the chain of command, from I don't know from where
12 to where, but apparently, even General Karpinski, were all suspended
13 or relieved over this thing for failure of command.
14I
DC: Yes, sir.
15I
MJ: And you had that and he had that.
16I
DC: Yes, sir.
17I
MJ: And it was clear that the officers, at least at that point,
18 were all going to get off, I'll use this term, "administratively,"
19 and the enlisted were all going to be court-martialed.
20I
DC: Yes, sir.
21I
MJ: And so you have that and he had that. So I don't
22 understand. What you're saying is he could have had it in a
139I018307
1 different form to make it better. Of course, at the time, wasn't
2 General Karpinski, was she relieved or suspended?
I
3 DC: I think she's relieved now, but I can't----
I
4 MJ: But I'm just saying is that----
I
5 DC: One of the things, sir, I did have, which made it relevant
6 to me, further relevant, and once again, as a trial defense counsel,
7 during this time period, I'm thinking, knowing the facts that I have
8 that this is the kind of information that will be helpful for the
9 investigating officer. When we received the Taguba report, yes, sir,
10 we had these generalities of reliefs, suspensions and
11 recommendations. What I did not have were the specifics and the
12 whys, which would have been very relevant for the 32 officer.
13I
MJ: Well, you did get the general "why".
14I
DC: Yes, sir, I knew the general "why"----
15I
MJ: The general "why," because they hadn't done well.
16I
DC: Yes, sir, they didn't do well when the event happened. But
17 what specifically did they not do well? As the command made that
18 decision, then I could have made the argument at the 32 investigation
19 pursuant to that information.
20I
MJ: Of course, you have the opportunity to make the argument
21 about the difference of treatment of the officers and enlistment at
22 the time.
140 018398
1IDC: Yes, sir, and I did make argument. But it would have been
much more compelling had I had that information at the time.
3I
MJ: I agree.
4I
DC: The public affairs notifications would have been helpful
5 because of--it would have been helpful for several reasons. First,
6 it would have given me notifications of when these ICRC visits were
7 occurring, which could have led me to further argue to the
8 investigation officer, "Look this is the timeframes that the Red
9 Cross was visiting the Abu Ghraib Prison." It came to my knowledge
10 that General Sanchez visited the prison during the applicable time
11 period through one of the other witnesses. It would have been
12 helpful to find out exactly who possibly, a public affairs release,
13 if General Sanchez had visited. There was also information----
14I
MJ: Couldn't you just call General Sanchez' SGS and ask him?
15I
DC: Yes, sir, but it would have led me so that--what kind of--
16 because from my knowledge at the time is that there was high profile
17 visitors at the Abu Prison, not necessarily Sanchez, but high profile
18 visitors. Then I could have, in the course of public affairs
19 releases or similar type of documents, found out, okay, when are all
20 these visits going on so that I could....
21I
MJ: Call up General Sanchez' SGS?
141I018309
1IDC: Yes, sir, and we could open up--make the investigation full
2 and impartial investigation. So all these documents, sitting in my
3 chair as a defense counsel, with one document produced for me, I have
4 to open up the box and I have to get creative and think about what
5 kind of general documents are going to be necessary for me to argue
6 to the investigating officer to make this a full and impartial
7 hearing if only one document is provided. And of course, the relief
8 in place, the operations orders, those would have all been very
9 relevant to have.
10ISir, I could go specifically through particular arguments
11 that I made and requests I made in the transcript. And the reason
12 why I feel it's relevant is, although they're not per se, I made the
13 objections, sir, but I made the objections qualified with, "Look,
14 we're in a combat environment. I realize that. I realize there's a
15 lot of witnesses involved in this case, and I realize that the
16 government has a lot of--would spend a lot of expense to prepare
17 these witnesses and to procure their testimony." My only offer at
18 the 32 was, let's realize that Rule 405 was not designed in a vacuum,
19 that Rule 405 was not--does not have bright line rules, that Rule 405
20 should be interpreted broadly so as to get to a full and impartial
21 hearing. That is why, throughout the investigation, I told the
22 government and the investigation officer, we need to break the mold
142 I018310
1 on things, in these particular circumstances. We need to equalize
2 the events that we face here in Iraq with those, if we were to try
3 this case back at Fort Hood or Fort Bragg. And I gave several
4 requests from the very beginning.I (04) -2j ubtLz.
5I
MJ: But at the end of the day, Captaintille and I'm not
6 minimizing your efforts to be accommodating to the operational needs
7 of the command, but at the end of the day, the decision I have to
8 make is whether there's a substantial compliance with the Rule, and
9 if not, whether a substantial right of your client has been
10 prejudiced.
11IDC:I
Yes, sir.
12I
MJ: And so, I'm stuck with what happened, not with what could
13 have happened, or necessarily the reasonableness of your position.
14I
DC: Okay, sir.
15I
MJ: Understand, I hear what you're saying, but I don't think
16 necessarily there's any legal significance to my decision in the
17 sense of whether or not you've made those offers doesn't
18 necessarily--whether or not you've made those offers, which were
19 apparently rejected by the government, doesn't necessarily make it a
20 bad investigation or a good investigation in the legal sense. Do you
21 understand what I'm saying?
22I
DC: I understand, sir. 143I018311
1IMJ: But I understand your position, and I appreciate you taking
2 that position. But do you see what I'm saying? That's what you did
3 then, now I've got to look at what was done, what you actually
4 received, not what you were willing to adjust based on the
5 operational environment.
6I
DC: Yes, sir. And we talked about prejudice, what's not
7 mentioned in the case file that I found, which I think is one of the
8 most prejudicial aspects of this, is under Rule 405, which is meant
9 to not only make sure that we have the right form and we have the
10 right charges being investigated by an impartial officer, but what is
11 a search for the defense is an opportunity, along with discovery
12 which happens after referral, but it gives the defense an opportunity
13 to establish that there is a defense, that's one of the--we have
14 R.C.M. 405 which allows us to present a defense at an Article 32
15 investigation. And Rule 405 also says, any other matter which might
16 affect the predisposition. And oftentimes, government and defense
17 counsel argue that that's highly--whether or not the case should be
18 referred to a general court-martial, special court-martial, but also,
19 whether or not the case could be settled and putting the defense
20 counsel in a position where, "Look, government, I've got--this is the
21 kind of facts that we have. This is the kind of facts that were
22 presented at the Article 32 investigation which shows the relative
144
I018312
1 strength and weaknesses of your position and your case." And it puts
2 me in a better position, now June 22d, 3 months later, of trying to
get the case settled, if need be. So that right of pursing justice,
4 in that sense, is significantly hindered when I'm not given the
5 ability to have a defense fully brought up under R.C.M. 405.
6I
MJ: But as you say, there's no legal authority for the
7 proposition of the purpose of a 32 is to facilitate settlement.
8I
DC: That's true, sir, but it is a prejudice, now 3 months
9 later----
4
10 MJ: How can it be a prejudice if it's not a right? 4
11 DC: Sir, it's not----I
12 MJ: If the right doesn't exist, how can it be prejudice?
I
13 DC: Sir, it's not a right, per se, it is an expansion of--it's
14 kind of a----
15I
MJ: It's a penumbra argument now?
16I
DC: What's that, sir?
17I
MJ: Penumbra argument now?
18IYes, sir.
DC:I
19I
MJ: I got it.
20I
DC: And for instance, it gives the government, what happened in
21 this case, it gave the government the ability, because the
22 investigation officer and the convening authority basically made the
145 I018313
1 declaration that the following witnesses were not going to be
2 available at court-martial, and we're not gding to have these
3 witnesses here today--at the trial. So, for 3 months while they're
4 preparing for their case, I am going on a separate route because I
5 can safely assume from the declarations made by the government that I
6 won't necessarily have to--I'll have to probably go into other areas,
7 based on prejudice of this particular 32----
I6W-2A60-0.-
8 MJ: Captain OM of course, you've been disabused of that
9 assumption today, if not before today.
10IDC: Yes, sir.
11IMJ: And you're going to have plenty of time to adjust fire, if
12 necessary.
13I
DC: Yes, sir, but that is a prejudice, and it's a 3-month
14 prejudice.
15I
MJ: It's a prejudice based on a misstatement of the law that
16 you were aware of at the time. So how can that be prejudice?
17I
DC: Well, sir, it's not only the 100-mile----
18I
MJ: You're saying the 32 officer controls who the government is
19 going to produce at trial? Come on.
20I
DC: No, sir. But at the foundation of the investigation
21 officer's opinion on unavailability is based on government
22 representations made at the Article 32.
146
I018314
1IMJ: But that's the unavailability for the 32. It's got nothing
2 to do with availability at trial.
3I
DC: Yes, sir.
4I
MJ: You know that.
5IYes, sir.
DC:I
6I
MJ: And you knew at the time.
7I
DC: Yes, sir, but it's one of the prejudices.
.
8IAnother, spedifically to one of the charged offenses, Staff
9 Sergeant Frederick is accused of willful dereliction of duty. As I
10 repeatedly requested in both my documentary evidence and my witness
11 evidence is, well, part of the essential elements of willful
12 dereliction is actual knowledge of duty. There was actually no
13 evidence of duty, no documents, other than a CID agent who mentioned,
14 "Well, this is not what MPs are supposed to do." That's what he did
15 mention.
MJ: Couldn't they have an inference then?
17I
16I
DC: What's that, sir?
18I
MJ: If an NCO saw misconduct occurring, an NCO is a military
19 policeman, couldn't the 32 officer infer that he had a duty to
20 intervene and his failure to intervene was willful dereliction?
21I
DC: Sir, there was no----
147I018315
1IMJ: You had that evidence, didn't you? You had evidence that,
again that, you had evidence that the accused was a military
3 policemen. You had evidence the accused was a noncommissioned
4 officer. You had some evidence, and again, I'm just taking--no value
5 to them, they observed maltreatment of the detainees and he did
6 nothing. Now, couldn't you, I mean, isn't that sufficient to infer a
7 dereliction charge?
DC: A willful dereliction of duty, sir?
9I
8I
MJ: Yes, sure. I'm not saying it's conclusionary. I'm not
10 saying the members will do it beyond a reasonable doubt, but couldn't
11 one reasonably infer that an NCO had an affirmative duty to stop such
12 things and his failure to do that is willful dereliction? Isn't that
13 just normal inference?
14I
DC: Sir, that is evidence of it, but it's, along with that,
15 their training and the circumstances surrounding that----
16I
MJ: But now you're going back to where we're weighing evidence
17 now. We're weighing that they didn't have enough training,
18 therefore, he thought it might have been okay, therefore there was no
19 dereliction of duty because he didn't think it was maltreatment,
20 therefore you're arriving at different inferences.
21I
DC: But I can't change the fact that 405, R.C.M. 405 allows me
22 as a defense counsel the right, the statutory right to put on a
148 I018316
1 defense and to put on other evidence that I see fit, and that would
2 go to extenuation and mitigation, and I can't change that. I
3 understand that----
4I
MJ: Just your conclusion that there's no evidence of willful
5 dereliction of duty, and I'm just saying as that, under the law,
6 there's some evidence to infer it.
7I
DC: Yes, sir.
8I
MJ: And that's enough for the investigating officer, isn't it?
9I
DC: And all they would have had--if that would have--
10IMJ: No, I'm saying, what they had, are you telling me it's a--
11 no rational investigating officer could infer what was a dereliction
12 of duty charge out of what he had?
13I
DC: Yes, sir, under----
14Iagree
MJ: "Yes, sir," that none could do it, or "Yes, sir,I
15 that,"--no, I got too many negatives here. The question is, based on
16 what he had, could no rational fact finder, investigating officer in
17 this case, infer a willful dereliction charge? And so, that charge
18 is based on no evidence?
19I
DC: Well, sir, I misspoke, but what caught me was, based on the
20 facts that he had. And the defense position is he did not have
21 enough facts in which to make that judgment.
149I018317
1IMJ: So you're saying, you're changing your objection. Now
2 you're saying that charge is based on no evidence.
3I
DC: Not that it's not based on evidence, it's not based on
4 sufficient evidence. He did not hear a defense to that charge at
5I
all.
6I
MJ: Which you had the option to present the defense, true?
I
7 DC: What's that, sir?
I
8 MJ: You had the option to present, with what you had....
I
9 DC: With what I had.
10IMJ: ...to present any defense you wanted.
11IDC:I
Yes, sir.
12I
MJ: Whether in the Taguba report, you talked about the
13 detainee's statements earlier, or the statements of other co-accused.
14 Now again, not a perfect world, I understand that, and not a perfect
15 defense either. And again, this is not a trial.
16I
DC: Yes, sir.
17I
MJ: I mean, this is a trial, but that one isn't.
18I
DC: Yes, sir, and frankly, sir, by the government's actions,
19 you hit it right there. They would have had, if they would have
20 balanced the evidence in the government's favor for prosecution, it
21 would have been tipped. But I could have, if I had a full and fair
150 I018318
DOD-041497
1 impartial hearing with the witnesses, documents, I may have been able
2 to tip those scales in favor of a different----
MJ: Is this a cumulative error argument, that he get all this
4 stuff, of people that you don't know what they're necessarily going
5 to say, mdght tip the scales? Isn't that where we're at? At the end
6 (L021410,0 - 2-MI"of the day, CaptainIand again, I sympathize with your
7 positions. But at the end of the day, you were not given certain
8 evidence, whether or not it was legitimate not to give it to you is
9 one issue. But at the end of the day, you don't know what this
10 evidence is going to say. You don't know what General Karpinski
11 would have said. You don't know what these legal reviews would have
12 said. And you're right, they may have helped you, and they may have
13 hurt you. And if you want them for trial, obviously, you have full
14 discovery for trial. But based on speculation, which is all you're
15 telling me, and again, I sympathize your problem, but basically what
16 you're telling me, is this could have changed it. It could have put
17 it in the context of, this was obedience to orders, or the MI people
18 were at fault, or it was a chain of command issue, we were doing what
19 we were told or whatever. I mean, I don't know. There's a whole
20 range of possibilities. But, you don't know that, either, because
21 you don't know whether these people would have said that or they
22 would have come in and said, "I gave them Geneva Convention training.
151I018319
DOD-041498
1 I told them not to do this," right? So, it could have cut against
2 you as well as for you. But the bottom line----
3IDC: Sir, it would have helped me in making----
4I
MJ: It's all speculative.
5I
DC: Yes, sir.
6I
MJ: And then you go back to your right to settle, which quite
7 frankly, is not a right. So, you may say it is. I say it isn't.
8I
DC: But it's a prejudice. If it's not necessarily a right,
9 it's a prejudice.
10IMJ: I don't know how you can have a prejudice to a right that
11 doesn't exist. Let's just agree to disagree on that one, okay?
12I
DC: Okay, sir.
13I
MJ: Do you have anything further at this time? I'm not cutting
14 you off,
15I
DC: Yes, sir.
16I
MJ: Do you have anything else you'd like to add?
17I
DC: Sir, with maltreatment of the detainee on the MRE boxes.
18 That is listed as a----
19I
MJ: I tell you what, can we...the court reporter needs a break,
20 so we're going to be in recess for 10 minutes.
21I
[Court recessed at 1605, 22 June 2004, and reconvened at 1630,
22I
22 June 2004.] 152 I 018320
1IMJ: Court is called to order. All parties are again present
2 that were present when the court recessed.
3ICaptaing1111111
4I
DC:, Sir, with regards to specific charges, Charge 1 and
5 Specification 1, the evidence that the investigating officer in his
6 report specifically named only PFC England's prior sworn statement
7 and three to seven photographs, which to him established a probable
8 cause to suggest reasonable certainty that that charge had sufficient
9 evidence. He had misapplied the 100-mile rule and disallowed the
10 testimony in any fashion, in any form, of PFC England, nor did the
11 government make any attempts to do that, therefore denying us the
12 ability to show that--elaborate on the photographs that PFC England
13 had discussed in her sworn statement, and not allowing the specific--
14 not allowing me to cross-examine a witness that was available via
15 email or otherwise denied him of a substantial right with regard to
16 that charge.
17IWith regards to Charge III, Specification 4, the only
18 consideration that the investigating officer, according to his
19 report, was that he said that the photograph, itself, was all that
20 was necessary, regardless of the fact that the detainee in question
21 appears to have a smile on his face, and that the detainee was
22 possibly listed on the defense witness list, not giving us any
153I 018321
1 opportunity to discover whether or not--and for the investigating
2 officer to fully and impartially look at the context of that picture
3 in a manner which would:have made, for that specific charge, a proper
4 recommendation. By following statutory requirements of R.C.M. 405,
5 that specifically prejudiced us in that case--those specific two
6 charges were recommended for a general court-martial.
7IWith regards to the assault charge whereas the government
8 alleged that Staff Sergeant Frederick had, quote, grievous bodily
9 harm, they solely looked at the statements of co-accused in that
10 matter, but the detainee in question may have been listed on the
11 defense witness list as the victim and therefore, since all of the
12 detainee victims were listed by the defense, therefore denying us,
13 since it appears from the sworn statements that there was no--that
14 the detainee in question did not die and was only punched, giving us
15 the--denying us the opportunity to argue for the 32 investigation
16 officer that was conducted, if it did happen, was merely a simple
17 assault consummated by a battery, rather than the greater offense of
18 grievous bodily harm.
19ICharge II was subsequently referred for a general court-
20 martial as it stood in the specification, based on, solely based on
21 co-accused witnesses and not the victim itself. By not having the
22 victim testify, given the fact that the victim--there was no
154 I018322
DOD-041501
1 evidence, no records provided to the investigation officer regarding
2 possible treatment, photographs of injuries or anything like that, it
3 denied us the ability to argue to the investigation officer that that
4 would be, that this particular charge, should be referred instead as
5 a simple assault rather than referred as a grievous bodily harm
6 offense, which is a substantial difference in that the simple assault
7 consummated by battery has a maximum incarceration of 6 months,
8 whereas grievous bodily harm, the greater offense is a difference of
9 2 1/2 years with a 3-year maximum offense.
10ISo, in that particular instance, the victim's testimony is
11 very much relevant since it goes to what specific charge should be
12 referred. But once again, the investigation officer, on the
13 government's own information, denied that victim's testimony.
14IThe assaults by stomping on hands and bare feet, there was
15 absolutely no evidence in the packet to talk about any detainee
16 injuries from this activity, only co-accused's statements. None of
17 the victims listed by the defense testified. No victim testimony, no
18 documents to suggest--were presented by the government. Once again,
19 that charge was referred to general court-martial without the ability
20 to speak to and have the investigation officer look into that
21 particular offense and the victims, which since the victims are the
22 ones that actually allegedly had their hands and feet stomped on with
155 I018323
1 shod feet, would be able to more accurately describe the extent of
2 their injuries, if any, and who exactly was involved in that, more so
3 than the co-accused. Once again, this was denied to us.
4I"Jumping into a pile of detainees" charge, included in the
5 government's case, photographs of piles of detainees. But there was
6 no evidence, no pictorial evidence of anyone jumping, actually
7 jumping on a detainee.
I
8 MJ: Was there a statement to that effect?
9I
DC: There is a statement t that effect, sir. (b)C7iC) 2-
10IMJ: I mean, CaptainIyou keep--this whole thing you're
11 talking about sounds to me, it simply goes to weight. You're saying
12 is, is that there's statements of co-accused, but not the victims,
13 therefore, that shouldn't go to trial. There's statements of co-
14 accused, but no pictures, therefore that doesn't go. I mean, that's
15I
not....
16IIn particular, with England's statement, because of the
DC:I
17 misapplication of Rule, we were not--we now only have the statement,
18 which was brought in over objection by the defense.
19I
MJ: But you can't un-ring that bell because she does have
20 counsel now, true?
21I
DC: That's true, sir.
156 I018324
1IMJ: Because she's not available today. Again, we're not
2 talking about today, but today, she's not available. Back then, she
3 might have been.
I
Yes, sir, but I guess I'm confused because I have to----
5I
4 DC:I
MJ: I know, I'm not consistent, either. I understand. Go
6 ahead.
7I
DC: But back then, I wasn't. We asked that--the defense really
8 went above and beyond in requesting on multiple times during the
9 course of the investigation that we take into account the fact that
10 we are in Iraq, that we look into_ alternative methods of testimony,
11 that we look into the possibility of using something as simple as
12 email, which we knew by both witnesses that testified today, that was
13 present and was available for witnesses that seemingly would have
14 provided the ability to counterbalance a lot of the evidence
15 presented by the government and therefore ensure that the end result
16 was not just, there's some evidence, basically uncontroverted
17 evidence of these activities, but by denying us, we can't even have
18 the investigation officer do that balancing test at all, because then
19 it does not become a question of weight, it becomes a question of
20 whether or not there was any evidence. And because the government
21 denied me all the witnesses, I was not able to present a defense.
157 I018325
(64-2* (-7)(-e
1 4 MJ: But aren't we back to where we started here, Captain MIN.
2 At the end of the day, is quite frankly, isn't this a discovery
3 issue?
4I
DC: No, sir.
5I
MJ: That all these people, every person you've talked about in
6 the last 2 1/2 hours, and if I missed it, tell me where I did. I am
7 trying to figure out any one of these persons on the day of the 32,
8 provide non-cumulative, relevant testimony that you knew they would
9 say at the time. What I keep hearing you saying is, "They might
10 have, this might have put it in balance. There may be this legal
11 opinion. This might say this. This might say that." I mean, at the
12 end of the day, isn't that what you have?
13I
DC: Yes, sir, and the only reason why those "mights" exist is
14 because what is known--what is fact is that he was denied almost
15 totally all witnesses and documents.
16I
MJ: But since that time, since that time, have you developed--
17 and I know I talk about what you knew at the time, but since that
18 time, any of these denied witnesses that you now are aware are going
19 to give you something that would have been relevant and non-
20 cumulative at the time?
21I
DC: Well, sir, I----
22I
MJ: That's a "yes" or "no."
158
I018326
4
1 DC: No.
I
2 MJ: Your answer to that is "no"?
I
3 DC: At the time----
I
4 MJ: No, I'm not talking about at the time. I'm talking about
5 from the day of the 32 until the 22d of June. You have all these
6 people that you were denied access to, witnesses, well--were not
7 produced, documents not produced. Is there anything that you've
8 discovered since when this 32 took place until today, in that pile of
9 stuff, in that long list of witnesses, that you're now aware would
10Iat the
have non-cumulative relevant testimony had you known aboutI
11 time of the 32?
12IDC: Sir, that's not a requirement for me----
13I
MJ: I didn't ask you that. I did not ask you that. I'm trying
14 to establish whether you had prejudice. I'm asking you this, is that
15 since the 32, this is the third time, I'll try it again. Until
16 today, do you have any evidence of denied witnesses or witnesses that
17 weren't produced that would have been non-cumulative and relevant had
18 you had them at the time of the 32?
19IDC: PFC England would have been, at the time of the 32, would
20 have been helpful and relevant.
159
I018327
1IMJ: But you had--but that's not what I asked you. You had
2 England at the 32, a statement, and today, that's all you have from
3 England.
I
4 DC: Yes, sir.
I
5 MJ: So let's put her to the side.
I
6 DC: So both--I still do not have access--well, to my knowledge,
7 I still don't have access to any of the victims.
8I
MJ: I understand that, and we're talking about discovery here.
9 This is what I think this is, is a discovery issue. Because I'm
10 asking you is----
11IDC: Sir, I'm not asking for discovery.
12I
MJ: I know you're not. You're asking for a new 32, but kind of
13 sounds to me like discovery, and I'm coming back to the same
14 question. Of all the stuff that you were denied at the time of the
15 32, or witnesses not produced, as you stand here before me today, do
16 you know in any of that stuff today that you didn't know back then
17 that would have provided non-cumulative relevant testimony to the 32
18 officer at the time.
19I
DC: Not that I haven't already elaborated on, no, sir.
20I
MJ: No, I don't want a qualification, I want a "yes" or a "no."
21 If the answer is, "Yes, this would have made a difference," tell me
22 what it is. If the answer is, "No," it's none.
160I
018328
DOD-041507
1IDC: All right, sir. Unfortunately, sir, due to the lack of
2 production of many of the documents that I requested by the
3 government, I cannot make that determination.
4I
MJ: You can make--no, you can make that determination.
5I
DC: To my knowledge----
6I
MJ: To your knowledge, your answer is, "No," based on the----
7IIs, "No."
DC:I
8I
MJ: Based on what the government has not given you----
9I
DC: Based on what the government has----
10IMJ: Based on what the government has given you and not given
11I
you.
12IYes, sir.
DC:I
13I
MJ: Understand.
14I
DC: And remedy could be to wait until after discovery, and then
15 I could tell you what exactly I was denied that would have helped me
16 on the 32. But I can't make an informed decision right now based on
17 these documents that I suspect would help me, but I cannot give you a
18 definitive answer based on the lack of----
19I
MJ: If you have a legal basis to re-raise this issue and you
20 wish to, not that I've ruled yet, but if I rule against you and you
21 wish to renew the issue on another separate grounds, you always have
22 that right.
161
I018329
1IDC:I
Yes, sir.
2I
MJ:. And I don't decide the legal issues on what might or could
3 happen in the future, okay?
4IYes, sir.
I
5 MJ: Do you have anything further on your motion?
I
6 DC: No, sir.
I
7 MJ: Well, I think as I stated, I find that most of what the
8 defense is requesting appears to comport with more of a discovery
9 issue than an R.C.M. 405 issue. The court finds, and again, for the
10 multiple time, sympathizes with the defense position here, but finds
11 that there was substantial compliance with 405 Alpha, and that the
12 accused, any prejudice appears to be only speculative at this point.
13 The court will review the transcript of this proceeding and submit
14 further detailed written findings of fact and attach it to the record
15 as Appellate Exhibit XI.
16INow, defense, I understand you have a motion for
17 investigative assistance?
18I
DC: Yes, I do, Your Honor.
19I
MJ: Can I see it, please? [MJ was handed document.] Trial
20 counsel, it's the Court's understanding that the government intends
21 to provide investigative assistance to the defense?
22I
TC: That's correct, Your Honor.
162I018330
DOD-041509
1IMJ: Do you have a copy of the motion?
2I
TC: The government's response? We did not file a response.
3I
MJ: No, I said, do you have a copy of the motion?
4I
TC: Yes, Your Honor.
5I
MJ: Who are you going to provide?
6I
TC: The government has taken certain steps. We've contacted
7 the Provost Marshal of Multinational Forces, Iraq, to identify either
8 a CID agent or credentialed military police investigator. At this
9 point, they are still trying to identify that investigator for the
10 defense. We hope to have it wrapped up by the end of this week.
11IMJ: Is 30 June a realistic suspense on that, Captain111111111111111
12I
TC: Yes, Your Honor. 13 MJ: Captain... so apparently, the convening authority has(0) 14 not turned this down yet, since what I'm hearing is the convening (6)66t)Z 15 authority is going to provide it. So, it's technically not right for 16 this court to decide. But it would appear that you're going to get 17 what you asked for by 30 June. 18ICaptai11.1111111111111111 ke sure this investigator understands 19 his priority is working with the defense on this and that he will be 20 a member of the defense team with all the privilege and work product 21 rules that apply to that.
163I018331
0)0z)-WIA -2-
1ICaptain IIIIII once the investigator is identified, who do
2 you wish him to contact, you or Mr.
3I.
DC:- Sir, Mr. 11111--W-14b
4I
MJ: Okay, provide the contact information to the defense--or to
5 the government. And government, that's the point of contact. If I
6 hear nothing from either side, I'm assuming this issue has gone away.
7IDefense, do you have any outstanding discovery issues?
8I
DC: Yes, sir, I do. Pursuant to the 802 session, I have
9 provided the Court a copy of all, there's several requests.
10IMJ: That will be Appellate Exhibit XIII, Appellate Exhibit XIV,
11 Appellate Exhibit XV, the latter two are emails, one dated 3 May, one 1
12 dated 4 May, and XVI, dated 27 May, and XVII, dated 17 May, which is
13 in the form of a motion; 16 May is in the form of a motion.
14IDo you have copies of all these, trial counsel?
15I
TC: Yes, Your Honor.
16I
MJ: Of all the stuff that they're asking for, operating from
17 the default, the government is going to provide everything except
18 what you tell me you're not going to provide. What aren't you going
19 to provide there, Captain
r4) ) U7)(c)
20I
TC: At this time, Your Honor--I'm sorry, can I see the last
21 discovery? I'm not sure if I have that. [MJ provided document to
164I018332
DOD-041511
1 TC.] At this point, Your Honor, the government intends to comply
2 with the discovery request.
3I
MJ:. Okay, then it woulld appear to be a non-issue for me.
4
4IDefense, do you agree with that?
5I
DC: I agree, sir.
6I
MJ: Anything else, defense counsel?
7IDC: Yes Your Honor. Pursuant to co-accused cases, Your Honor
8 has granted interviews to the chain of command for purposes of not
9 only the case-in-chief, but for unlawful command influences purposes.
10 The defense requests similar access to these general officers under
11 similar circumstances.
12I
MJ: Well, generally, each case stands to itself. Since I know
13 what I ruled in those cases, I know what I'll rule in this case. Do
14 you have any objection, CaptainIthat this case should be
I
(OW ab) Ok,S
15 treated any differently?
16I
TC: We just have a clarification point, Your Honor.
17I
MJ: Okay.
18I
TC: In the interviews that you ordered the government to have,
19 yesterday, you ordered in certain cases that the defense have access
20 to certain high ranking officers and anyone in their command for
21 interviews. We just want a clarification if those were supposed to
22 be sworn or unsworn interviews.
165 I018333
1IMJ: They were interviews, not depositions.
2I
TC: Yes, Your Honor, that's what we wanted clarification on,
thank you.
4I
MJ: I did indicate that as far as the general officers are
5 concerned, that the interviews are to be, at a minimum, recorded and
6 strongly recommended that a verbatim transcript be made of that.
7 But, they are interviews, they are not depositions, and that would
8 include everybody from General Sanchez on down that is relevant.
9 Now, understand, I want to make sure this is clear, is I'm saying is
10 that if General Sanchez, General Metz and anybody on down below that
11 level, and we're talking about in the chain of command that has
12 relevant testimony is subject to interview. Now, if defense requests
13 an interview with somebody and the government says, "We don't think
14 this person has anything to do with anythi4," then of course, we can
15 revisit that issue. This is not a carte blanche to everybody below
16 General Sanchez, since that includes everybody in Iraq, in Kuwait and
17 wherever else.
18ISimilarly with General Abizaid, I said, General Abizaid,
19 separate. That does not include everybody who's in CENTCOM. So,
20 just to clarify, that's what I meant and I'm assuming everybody took
21 it that way. And this, of course, would be those who do not
22 necessarily have Article 31(b) or a Fifth Amendment right not to be
166
I018334
1 interviewed. And if they assert such a right, obviously, they would
2 become unavailable for interviews and we'll discuss potential
3 remedies, if necessary. Okay?
4I(b/W -2)(6) 7b-a
Anything else, CaptainI
5I
DC: Yes, sir. In co-accused cases and in this case, the status
6 of Abu Prison as a crime scene has been much an issue, whether or not
7 it's going to be preserved. Given the nature of the turnover of
8 power, if you will, to the local Iraqi government and the possible
9 lack of judicial oversight over another country's decisions----
10IMJ: Well, wait a minute, back up, possible?
11IDC:I
Yes, sir.
12I
MJ: By possible lack of oversight under the Iraqi government
13 system? Let me ask you this. Do I have any authority with the Iraqi
14 system?
15I
DC: No, sir.
16I
MJ: It's not possible one way or the other.
17I
DC: No, sir.
18I
MJ: After 1 July, they will be a sovereign country and it's
19 their decision. And the last time I checked, I don't have any
20 authority over them.
21I
DC: That's right, sir.
22I
MJ: So I won't even say "possible." 167 I018335
1IDC: Sorry. Because of both--rather, the possibility of them
2 making an adverse decision to your ruling, I ask----
3I
MJ: Well, by definition, they can't, because they're not
4 subject to my ruling.
5I
DC: Yes, sir, exactly.
6I
MJ: If they choose to destroy the prison, do you want me to do
7 something about it?
8I
DC: Yes, sir, well, no, sir----
9I
MJ: What's that?
10IDC: I ask that the crime scene be sufficiently videoed and/or
11 photographed sooner rather than later in order to at least establish
12 some sort of evidence for any possible court-martials in these cases.
13I
MJ: There appears to be ample photographic evidence of it
14 already, you want more?
15I
DC: Well, sir, I do not have yet, as of yet, that ample
16 photographic evidence. I have pictures that were given to me by CID.
17I
MJ: Captain UMW is there any photographic evidence of
I
18 the prison, itself? -2)$)(70 - 2—
19I
TC: Only about 1,000 pictures that have already been turned
20 over to the defense.
21I
MJ: I'm talking about, are there any of them without people in 22 them? 168 I018336
1ITC:' Yes, Your Honor.
2I
MJ: It would appear that--and understand this, the word "crime
3 scene" was used by the defense, not by the Court, and I simply
4 adopted that as a, there's no legal judgment that a crime had been
5 committed there. It was simply in the colloquial sense that there's
6 an alleged crime there and therefore it's the scene of an alleged
7 crime. And there should be no inference taken that--or the
8 conclusion that it is a crime scene, or any crime committed there,
9 because that's a conclusion of law that's not made by the Court.
10 Now, I believe Captain111111111111ays there's already such photos. 11 Take a look at them.I(40Z ) Wt.) - 2-
,
DC: Understood, sir.
13I
12I
MJ: Anything else?
14I
DC: Yes, sir. Several other issues I would also like to
15 address in regards to specifically with Staff Sergeant Frederick. I
16 made a request to the government on April 16th of this year that due
17 to the nature of the situation in Ir4q, that my client be allowed to
41,
18 remain under arms and have his personal weapon returned to him for
19 his own protection. He has it with him today in anticipation of a
20 convoy. He has it with him when he's to provide security when we go
21 to trials, and it would only be reasonable that he also be allowed to
169 I018337
1 have i when he's here at Victory, which is still very much a combat
2I
zone.
3I
MJ: Is that my lane, Captain0111(4)-2)*(10
4I
DC: What's that, sir?
5I
MJ: Is that my lane?
6I
DC: No, sir, but I just wanted to address it now because it
7 could very well be a--potential in your lane with an Article 13
8 violation.
9IMJ: Government's on notice of the issue. The government
10 chooses to do what the government chooses to do. And if you believe
11 a violation occurred, I will give an appropriate remedy. But that
12 sounds to me as a command decision.
13I
DC: Yes, sir.
14I
MJ: Not that it makes it right or wrong, just at this point,
15 that's not--I don't see the purview of the Court to decide whether or
16 not a soldier is armed or goes on leave or anything else.
17I
DC: Understood, sir.
18I
MJ: So if the command chooses to treat a soldier in such a way
19 that it constitutes a violation of Article 13, obviously, we will get
20 an appropriate relief.
21I
DC: Understood, sir. There is evidence seized by the
22 government which consists of two memory sticks. The memory sticks,
170I018338
1 themselves, are personal property of Staff Sergeant Frederick. There
2 are some personal digital photographs and other items that the
3 defense would like to get back, realizinl that the memory sticks
themselves are still evidence. The digital pictures and whatnot are
5 still very much personal and are not evidence in this particular case
6 and we'd also make a request that they be returned to the defendant.
MJ: Is the memory stick being retained as evidence in this
8 case, trial counsel?
9I
7I
TC: Yes, Your Honor.
10IMJ: How many images are on this memory stick?
11IDC: We don't know, exactly, Your Honor, but there are----
12I
MJ: Ballpark it for me, Captain ea 664_Je)--wo
DC: Approximately 4 to 500 personal images.
14I
13I
MJ: How do you define "personal"?
15 DC: Images of my client's experiences here in Iraq.
16 MJ: And trial counsel, there are also evidentiary images on
17 them?
18 TC: Yes, Your Honor.
19I
DC: So far, sir, we've only been provided with the evidentiary
20 images. All we're asking for is that a CD-ROM be put in a computer
21 somewhere and burn the entire contents of those--it doesn't seem
22 to----
I
171 018339
DOD-041518
1 MJ: What do you say there, Captain W1111111? (4)2*70) z
2I
TC: I think we can accommodate that, Your Honor.
3I
MJ: I mean, since the evidentiary stuff they're entitled to
anyway, the personal stuff they can have back. Just download the
5 whole thing.
I
6 TC: Yes, Your Honor.
I
7 MJ: This isn't really my lane, but what the heck.
I
8 TC: Yes, Your Honor.
I
9 MJ: But go ahead and just download the whole thing because he's
10 entitled to, one, as the accused of the evidence stuff, and the other
11I
stuff is personal.
I
(0)20t-1-12I
TC: Yes, Your Honor.
MJ: Okay, Captain111111 you got that one. What else?
14I
13I
DC: As per other co-accused, it's our intention also to file a
15 leave request with the government, given the status of Staff Sergeant
16 Frederick being present in country for over a year, and being
17 flagged, he has not so far been allowed to have any rest and
18 recuperation leave.
19IMJ: It's similar with the issue with dealing with the weapon.
20I
DC: Yes, sir.
21I
MJ: You may re-file or do what you want with the chain of
22 command on that.
172
I018310
1IDC:I
Yes, sir.
2I
MJ: And then if it's denied and there is appropriate relief,
3 h '11 get it. But at this point, I don't have authority to tell the
4 command to put a soldier on leave.
5IAnd then on May 27th, 2004, I notified the trial counsel
DC:I
6 of my request for support under Army Regulation 27-10, paragraph 6-4.
7 I am currently unable to have private communications with civilian
8 co-counsel given my locations here. The DNVT phone that was provided
9 does not allow me access to outside DSN lines, which don't give me
10 access back to the United States----
11IMJ: I understand. What do you say to that, trial counsel?
12I
TC: Access has been provided. In fact, we've already worked
13 this out with defense where all he has to do is come to the SJA
14 office, give us an approximate time. We set him up with his own
15 office up in the palace that has a DSN line and he can call his
16 defense counsel. All we ask for is a reasonable notification of what
17 time so we can make the coordination up in the palace.
18I
MJ: Can he convert that to a civilian line once he calls----
19I
TC: Yes, a DSN line is a civilian line, Your Honor, and he can
20 call directly to the United States with that.
21I
MJ: And he can switch over to a civilian at the other end is my 22 question. 173I018341
1ITC: Yes, Your Honor.
MJ: Now, I'm not very technologically advanced here, Captain
3 OEM (216)Z) (6) 70 —2—
I
4 TC: I call my wife back inI
States all the time. He can do
5I
it, sir.
6I
MJ: What do you say to that, Captain
7I
DC: Sir, with that, I agree that I have been--given the
8 presence of co-counsel in New Hampshire, there's not an installation
9 nearby, so I cannot have a--I haven't been able so far to connect
10 with a DSN operator close to New Hampshire. So what I end up doing
11 is contacting a DSN operator, for example, at Fort Bragg, then
12 spending my own funds, via calling card, to have them dial a 1-800
13 number. So all I asked before was that I be provided a calling card.
14 That was rejected by the government.
15I
MJ: Is Captain 11111111having technological problems here,
16 Captain MM. or is it----(W)J 2-1 X7XC}
17I
TC: Sir, all he has to do is raise it to the government.
18I
MJ: Here's the issue, it's very simple, is this case involves
19 both civilian counsel and a Reservist with I'm assuming ties to his
20 local community. So he's going to have to be given private access to
21 commercial phone lines to permit the defense to prepare their case.
22 Solve the problem. If you don't, I will.
174I01834.
1ITC:. I agree, Your Honor. All he has to do is raise it to the
2 government.I
(a0 21W31d
3I
MJ: Captain1111111, if what he gives you is not satisfactory,
4 re-raise the issue. What I'm being told right now is that you will
5 be given access, under the limitations of this environment, to
6 private, commercial lines to the States to tllk on official business
7 to your heart's content in preparing for your case.
8I
DC:. Yes, sir.
9I
MJ: And that would also include if your client needs to
10 participate in said discussions.
4
Yes, sir.
I
11 DC:I
12 MJ: Go ahead. Anything else?
I
13 DC: No, sir, that's it.
I
14 MJ: Trial counsel, do you have anything?
I
15 TC: Yes, Your Honori. The government would move that the court
16 issue a public4ty order to any perspective panel members in this
17I
case.
18I
MJ: Defense counsel, do you object to me signing said order?
19I
DC: Your Honor, the defense does not have a problem with that
20 order, only to the extent that we feel that it's not remedy enough to
21 cure a possible change of venue from this location.
175
4 018343
1IMJ: So you don't object to it, you're just not sure it's going
2 to be all that effective.
3IDC: Yes, sir, I d'on't think it's going to be curative enough.
4I
MJ: And I think we discussed at the 802 that the change of
5 venue motion, we will take up at a later time. And of course, at
6 that time, we can talk about the effectiveness or lack thereof of
7 said order.
8IThe government motion to issue such order is granted. I've
9 signed it. Distribute it to all court members, and also distribute
10 it to all other--number of cases we have in this case. What's your
11 pool of court members there, Captaind1111111106..X0Z/60i)-2
12I
TC: Excuse me, Your Honor?
13I
MJ: The number of accused in these related cases, I'm just
14 reading the charge sheet in this case, you have, I believe, five
15 pending trials.
16I
TC: That's correct, Your Honor.
17I
MJ: So I assume you have five pending panels.
18ITC: We will be bringing nominees to the convening authority so
19 he can select additional panel members for these five cases.
20I
MJ: Once they're all selected and identified, make sure each
21 and everyone has that and make sure each and everyone signs it. And
17 6 4 018344
1 defense, you will have, of course, access to all the files nominating
2 the court members and this information, also.
3IAnything further from the government?
4I
TC: No, Your Honor.
5I
MJ: Anything further from the defense?
6I
DC: No, Your Honor.
7IMJ: Sergeant Frederick, one matter I need just go over with you
8 again. In the event the command decides to give you leave, as I told
9 you before, you have been arraigned. We did that last month in May,
10 and you normally have a right to be present at every stage of your
11 trial. Do you remember me telling you this?
12I
ACC: Yes, Your Honor.
13I
MJ: Now do you remember, I said if you went AWOL, that the
14 trial could proceed without you?
15I
ACC: Yes, Your Honor.
16I
MJ: And again, as I told you then, as I tell you now, I'm not
17 implying that if you get leave to go back to the States you're going
18 to go AWOL or anything like that. This is standard advice I give
19 everyone I arraign when trial does not begin immediately. So if you
20 do get leave and you do have difficulty getting back, make sure you
21 notify your chain of command. Do you understand that?
22I
ACC: Yes, Your Honor.
177
I018345
1IMJ: Also, for planning purposes, I expect all discovery in this
2 case to be completed by 31 July, and at that time, I will have an
3 affirmative email from every party involved of any outstanding
4 discovery issues. Assuming that that date is met, defense, you have
5 a 14 August suspense date for motions. I understand your discovery
6 is not complete, but there's no reason in the world that a lot of the
7 motions can't at least be started in draft format at this point.
8 That gives you almost 2 months to prepare for motions.
9IGovernment, they're going to have 2 months to prepare,
10 you're going to have 1 week to respond. Your suspense is 21 August,
11 with anticipated motions hearing date subsequent to that, ball
12 parking it somewhere after the 21st of August.
13IDoes everybody understand their suspenses?
14I
TC: Yes, Your Honor.
15I
DC: Yes, Your Honor.
16I
MJ: Any other matters to take up at this time?
17I
TC: No, Your Honor.
18I
DC: No, Your Honor.
19I
MJ: Court's in recess.
20I
[Court recessed at 1705, 22 June 2004.]
21I[END OF PAGE.]
178
I018346
1I
[Court was called to order at 1355, 24 August 2004, at Mannheim,
2 Germany.]
3I
MJ: Court is called to order. All parties are again present
4 that were present when the court recessed with the exception of the
5 civilian defense counsel, who has now joined us.
6 (4. Viheift.M
can you put your qualifications on the record?
7ICDC: Yes, Your Honor. I'm a member of the bar of the District
8 of Columbia in good standing. I know of nothing to disqualify me
9 with the representation of this case.
10IMJ: Please raise your right hand. [Civilian defense counsel
11I
was sworn.]
12II would note for the record that this hearing is being
MJ:I
13 conducted in Mannheim, Germany, at the request of the defense because
14 they would be in Germany at this time to conduct further discovery in
15 this case. The movement of this hearing to Germany in no way
16 indicates a movement of the trial itself or any further hearings
17 outside of Baghdad, Iraq subject to a granting of a motion for a
18 change of venue.
19IAt the last hearing, I denied a defense request to reopen
20 the Article 32 hearing. I have reduced additional findings to
21 writing as I said I would. Major"... here's a copy for you and
(6)10-2
179I
018347
1 the defense, and I believe that's Appellate Exhibit XI. [MJ handed
2 both counsel a copy of Appellate Exhibit XI.]
Furthermore, the defense filed a motion for a change of
4 venue, that would be to change the location of this trial. Defense,
5 the government filed a response to the sentence to change the
6 location of the tritl. For the agreement, the parties had decided
7 the motion without conducting a hearing; we did it by email on the
8 4th of August. I denied the motion and provided copies of my denial
9 to both sides and at this time, I will make my ruling, defense
10 motion, government motion and the relevant email traffic as Appellate
11 Exhibit XIX.
12IDefense, you indicated that you wish to file motion for me
13 to reconsider that motion I just referred to?
14I
CDC: That's correct, Your Honor.
15I
MJ: Do you have a copy of the motion for the court reporter?
16I
CDC: We've provided it to the court reporter, Your Honor.
17I
MJ: That will be Appellate Exhibit XX. [Reporter handed
18 document to MJ.]
19ITrial counsel, do you have a written response?
20I
ATC: No, Your Honor.
21I
MJ: Defense, what is new in your motion for reconsideration
22 that I did not have before me when I decided on the original motion?
180
I018348
DOD-041527
ICDC: What is new, Your Honor, is the discussions with respect to
the witnesses and their import. And additionally, we have noted one
other witness, Lieutenant ColonelIand we have indic.ated in
the motion for reconsideration that t e court's interpretation of the
law in thi area was an error.I
(0,7g).
.)I
I
MJ:' What part was in error?
I
CDC: If I may, Your Honor, approach the podium. There were
multiple areas, Your Honor, where we respectfully disagreed with the
court.I
Allow me to enumerate them if I can.
IMJ: Sure.I
(6,(,‘)4(0A-/
ICDC: Firstly, with espect to the civilian witnesses who we
identified as beingI
terial witnesses, that is to say the civilian
expert, DI, the warden of the Buckingham Prison, the prison
guard who worked with Staff Sergeant Frederick, his wife, his
stepdaughter and the local pastor, all of these persons wish to
testify and provide material evidence to the court. They have,
however, advised the court by way of declaration and the pain of
penalty and perjury, that they are unwilling to travel to Iraq. Now,
the court, in responding to their declaration said that they were
choosing not to go to Iraq. In other words, the court imposed a
burden upon the witnesses as though going to Iraq were somehow----
I
MJ: What was the legal error?
181 I018349
DOD-041528
1ICDC:I
The legal area was that, I can suggest to you, United
2 States versus Nivens, which is a case that cites United States versus
3 Hodge, Hodge being a Vietnam-era case. There, the court said that
4 not going into a war zone is not a matter of choice, that it is
5 tantamount to the equivalent of a witness who is diseased or near
6 death. And therefore, the court's ruling that this was over a choice
7 on the part of these civilians we believe to be legal error.
8I
MJ: Well, let me ask you, there is nothing physically
9 preventing them from flying to Iraq, true?
10ICDC: Yes, Your Honor.
11IMJ: The government will provide resources and transportation
12 that they've done for other cases and for other civilians, true?
13I
CDC: Well, not, true.
14I
MJ: Well, you're saying the government will physically prevent
15 them from showing up?
16I
CDC: No, other civilians, I do not believe are analogous to
17 these witnesses. The civilians who go into Iraq do so either at the
18 behest of the government because they're government employees or
19 because they have an interest in financial gain and are willing to
20 subordinate their personal interest to that.
21Iwould it surprise you to know in a case held in
MJ: Mr.I
22 Tikrit, Jraq, th t the family members of both the accused and the
018350
DOD-041529
1 victim voluntarily came to Tikrit and testified in the trial and sat
2 the whole time?
3I
CDC: Nothing in the law surprises me.
4I
MJ: So what I'm simply saying is, there is the physical
5 capability of transporting them to Iraq if they so chose to go.
6IYes, Your Honor, but the case law is otherwise.
CDC:I
7I
MJ: I'm not talking about the case law. I'm talking about,
8 they can get on a plane in CONUS, fly commercial to Kuwait to get
9 picked by MILAIR in Kuwait and go to Baghdad. There is not
10 physically preventing them from doing that, true?
11ICDC: True, but it's not the legal test.
12I
MJ: I didn't ask you that. Now, they're choosing not to come
13 because they say it's not safe.
14I
CDC: Well, true. They say it's not safe because common sense
15 dictates that, Your Honor.
16I
MJ: And therefore, I should move the trial out of Baghdad to
17 someplace that they're willing to come to.
18I
CDC: That's one of the reasons you should move the trial out of
19 Baghdad, yes.
20I
MJ: And so, where should I move it to to accommodate their
21 desires?
183
I018351
1ICDC: Well, you can move it anywhere, and if you intend to keep
2 the case, Your Honor, you could move it to Kuwait. You were there
3 with great regularity. It's just across the border. It's far safer
4 than Iraq. We can get many more witnesses there in person, and
5 you're there on a regular and recurring basis.
6I
MJ: But you would agree with me that the court has no subpoena
7 power over civilians to go to any place outside of the continental
8 United States.
I
9 CDC: United States versus Bennett.
4
10 MJ:' Is that a "yes"? 4
11 CDC: Yes. I
12 MJ: Okay. And then, so what happens if it goes to Kuwait and
13 they say, "Well, I'm not going to show up there because I don't want
14 to"? Isn't this, at the end of the day, is that this case was
15 started in Baghdad, Iraq, and I know that's not dispositive, and then
16 the court posture of the case, these are sentencing witnesses, and
17 they will be provided transportation if they wish to come, and
18 they're choosing not to come because in their view, it's not safe to
19 come. At the end of the day, what is wrong with that analysis?
20I
CDC: Here's is what is wrong, Your Honor, is it's contradictory
21 to United States versus Hodge, where the court said that attending a
22 trial in a combat zone presents such grave danger to a civilian
184I 018352
1 witness that we can properly compare his situation, namely, the
2 witness, to one who, because of illness or disease, would be in
3 grave danger to compel to attend.
4I
MJ: I'm not compelling them to attend. If they want to come,
5 they come, if they don't, they don't.
6I
CDC: The point of that language, Your Honor, is that it is not a
7 question of whether they are willing to come. It is a recognition
8 that no one need to into a combat zone to discharge their
9 responsibilities as a witness if there is an alternative that can
10 meet the ends of justice.,
(06J-qibbiei-/
MJ: Mr. 1111111 wouldn't that apply to every case in a forward
12 and deployed environment?
13I
CDC: I don't represent people in every case, Your Honor.
14I
MJ: I didn't ask you that. What you're telling me is that
15 because these witnesses choose not to go to Iraq because they believe
16 it's too unsafe, therefore, they've now chosen where the trial is
17 going to be. And my answer to you is, what happens when they say--
18 under your analysis, you're letting defense sentencing witnesses
19 dictate the place of trial based on choice. They're choosing, "I
20 don't want to go to Iraq," maybe they won't, I don't know. They may
21 go to Germany. But the bottom line is, they can't be forced to go
22 anywhere outside the continental United States, which tells me is the
185
018353
1 end result of this logic that you're giving me is that when defense
2 sentencing witnesses don't want to come to a particular location,
therefore, we move the trial to where they will come.
4INo, Your Honor, it's far more complex than that, far more
CDC:I
5 complex than that. We are in a place where there are no witnesses.
6 All the witnesses are going to come to Iraq in this trial, in this
7 sentencing proceeding. And here is what these civilians, Your Honor,
8 are going to have to sign, if I may, may the indulgence of the court.
9I
MJ: Go ahead.
10ICDC: "You will be traveling into a combat zone in a dangerous
11 part of the world. .By agreeing to come to Iraq, you assume several
12 risks, including, but not limited to, serious injury or death. You
13 will again be potential targets of enemy insurgents who have been
14 known to fire weapons, rifles and rocket propelled grenades and to
15 plant improvised explosive devices alongside roads traveled by
16 coalition forces. Before allowing you to enter Iraq, you must agree
17 to hold the United States harmless, assume the risks set forth above
18 and affirmatively waive your right to sue the Army or any other
19 government agency for injury or death."
20INow, I suggest to you respectfully, Your Honor----
21I
MJ: And what is that piece of paper?
186
018354
1ICDC: This is the hold harmless document that every civilian is
2 required to sign going into the country of Iraq by the United States
3 if they are to be transported into Iraq.
I
4 MJ: You need to make that an appellate exhibit. It will be
5 XXI.
I
6 CDC: I will be happy to do so. Your Honor, I can give you a
7 better copy eventually. We had difficulty taking this down off of
8 the computer.
9I
MJ: Government, do you take any issue of this document as it
10 purports to be?
4
11 ATC: No, Your Honor. I
12 MJ: I'll consider it.
I
13 ATC: I'm not trying to dictate terms of the arrangement, because
14 this is a frivolous claim, Your Honor. The United States recognizes
15 the danger, implicit danger associated with entering into the country
16 of Iraq, and in so doing, has held itself harmless. We don't do that
17 in Korea. We don't do that in Germany. We don't do that in Kuwait.
18 It's completely reasonable for you, as a bare minimum, to have this
19 trial in Kuwait. I can't tell you that people won't come to Kuwait,
20 but I can tell you with great certainty that they are far more likely
21 to come to Kuwait than they are willing to go into Iraq, and that's
22 not unreasonable. In fact, I would say with some certainty, Your
187I 018355
1 Honor, that to suggest that they're unwillingness to go to Iraq is a
2 volitional act on their part, which therefore, conveys come sense of
3 blame, is inconsistent with the reality of the marketplace there.
4I
MJ: That's not blame that's consistent with a choice.
I
5 CDC: I don't believe they have a choice, Your Honor.
I
6 MJ: We'll have to agree to disagree.
I
7 CDC: Well, I do so respectfully, of course.
I
8 MJ: No, I understand, that's fine.
I
9 CDC: But with respect to those civilian witnesses, I believe
10 that the Vietnam case of Hodge says it all. And you know, also,
11 Judge, with regard to travel these days and times, this isn't
12 Vietnam. This is a country that is surrounded by non-combative
13 circumstances where the Army has a significant presence at Camp Doha
14 where you try cases on a regular basis just south of there. We are
15 all here today. We can be in United States as is evidenced by the
16 England case, and that case is moving at a pace without difficulty.
17 Well, it's moving at a pace.
18I
MJ: It's moving.
19I
CDC: I perhaps was excessive in my use of the language, Your
20 Honor. It's moving a pace and it is there and will remain there.
21 So, it's not as though things can't be done in CONUS or in Kuwait.
22 It is rather that conscious choices are being made to keep it there.
188I
1 Now, may I say with all due respect to the court that the decision to
2 initiate the case in Iraq was perhaps reasonable given the fact that
the incident arose in Iraq. However, the case has become
4 substantially politicized since then, Your Honor. And in fact, now,
5 we are told 2 days ago by General Kimmitt that these trials must be
6 held in Iraq because the Iraqis are a people who are slightly
7 paranoid and would feel there was a conspiracy if we moved it from
8 there. Even the government suggested that one of the reasons----
9I
MJ: Just so that I--A, I've never heard that remark, and B,
10 with all due respect to General Kimmitt, I don't care what he thinks.
4
11 CDC: Very well. I
12 MJ: It's not his decision.
I
13 CDC: Understood.
I
14 MJ: He can want to have it on the moon for all I care, which I
15 don't at all. So whatever his view of this case is is fine, but his
16 personal views have nothing to do with the decision of this court.
17 Go ahead.
18I
CDC: But there is, Your Honor, implicit in these proceedings, an
19 impression that is meant to be left by bringing this case to Iraq.
20 And what I am suggesting to you respectfully, that there is a
21 political component to this case. Even the government in their
22 response to our initial brief said, that one of the principal reasons
189I018357
1 for keeping the case in Iraq was to demonstrate to the Arab world in
2 General and the Iraqis, specifically, that we had a transparent
3 system of justice. Now, there is a paradox here, Your Honor, because
4 if all these witnesses do not attend, we're going to demonstrate a
5 transparency of justice to people who have not known it for decades,
6 will we at the same time deny the individual American justice that
7 would normally be accorded to an American elsewhere all because we
8 have this compelling need to maintain this trial in Iraq. I can
9 perceive of no operational necessity which requires this trial to be
10 in Iraq.
11IMJ: On your motion for reconsideration, you indicate the
12 civilian witnesses are the ones, I'm saying "choose," you're saying
13 "being forced," and then there's a number of military witnesses. You
14 would agree with me that they will not get this option. The military
15 witnesses are going to be told where they need to be.
16I
CDC: Absolutely.
17I
MJ: So that part of your argument doesn't apply to them.
18I
CDC: You're quite right, obviously, yes.
19I
MJ: And for those in your earlier brief that invoked their
20 31(b) rights, absent a grant of immunity, they are unavailable for at
21 least legal reasons unconnected with the locus of trial.
22I
CDC: And we're trying to address that later on.
190I
018358
1IMJ: But what we're talking about here, is you're saying is
2 they're no operational necessity to try this case in Iraq, but isn't
3 the default place of trial where the convening authority puts it and
4 that you have the burden to show it should be moved?
CDC: Yes.
6I
5I
MJ: And therefore, the burden is you, not to show why it needs
7 to be moved, not them to show it is operational necessity.
8I
CDC: Quite agree, and by a preponderance of the evidence
9 standard, we have to do that.
10IMJ: And what basically, what I'm hearing you tell me is the
11 primary reason to move this trial location is the civilian witnesses'
12 lack of attendance, and you won't say why. That's what you're
13 telling me, the primary reason is because civilian witnesses will not
14 attend the trial in Iraq.
15I
CDC: Civilian witnesses will not attend the trial in Iraq, that
16I
is correct.
17I
MJ: Government, what's wrong with moving this thing to Kuwait?
18I
ATC: Your Honor, it's the government's position that it is the
19 default position of where the convening authority puts it, and the
20 defense has to meet the burden. On top of the burden of, they have
21 to show why it needs to be moved, you also have to take a look at the
22 posture of the case which is a sentencing case, so it's under R.C.M.
191I
018359
1 1001 which clearly points to the fact that of the preference of
2 alternative forms of testimony as opposed to necessarily having live
3 witnesses. When the Rules of Court-Martial were set up, it's clear
4 from the wording of 1001 that unless there's a showing of necessity
5 of why this person needs to be taken as a live witness, that other
6 forms are actually the preferred means of taking that evidence. So,
7 as far as...two things, one, the default position of where the
8 convening authority puts it, and second, the posture of the case
9 dictates that unless they can show why this--there's a particular
10 civilian witness that needs to be taken live, other than that, it
11 should default to Baghdad, Iraq. 12IifC)
MJ: What do you say to that, Mr.011/ 616 —1)L.
13I
CDC: Well, I say, Your Honor, that----
14I
MJ: You would agree, we're talking about a sentencing case
15I
here.
16I
CDC: Oh yes, of course, we are. I've disclosed that, too.
17I
MJ: No, I'm with you. And the rules do permit alternative
18 forms of testimony that the government indicated they're perfectly
19 willing to participate in. Doesn't that somewhat obviate any
20 prejudice suffered by the lack of personal attendance?
21I
CDC: Well, it depends on how you interpret 1001(e). The
22 foundation upon which 1001(e) is built is a notion is that it's an
192I 018360
1 indigent status kind of language. That is to say, it reflects
2 witnesses brought at government expense. That's what it says. And
3 the government is spending hundreds and hundreds of thousands of
4 dollars for these cases, and they are hanging their hat on lool(e),
5 which is really an economic section of the Code. It says that you
6 are limited in what you can do as a Judge with respect to your
7 discretion, if the witnesses come at government expense. So, the
8 purpose of that Code section is to ameliorate costs associated with
9 the production of witnesses. That's the underpinning of that
10I
section.
11IMJ: But in this case, there's no issue about them paying for
12 the witness to show up. It's simply saying if the witnesses don't
13 show up...it's one thing to say, the government says, "I'm not going
14 to produce these witnesses because it costs too much money," which is
15 I think is what you're saying, and therefore, use these other means.
16 That's where the government is unwilling to pay. And assuming that's
17 a justified position, then you say, use alternate means. But the
18 government is perfectly willing to pay in this case. And so you are
19 choosing, not you, but the defense says, "I want these witnesses
20 here. They won't come, therefore, move the trial to them." And I
21 come back to the idea is, that when this trial was started, it
22 started in Baghdad. The expectation was, because as you're well
193I
018361.
1 aware, the default is it usually ends where it starts. I'm not aware
2 of any trial that moves sua sponte somewhere else. Be all that as it
3 may, it started in Baghdad. The offenses occurred in Baghdad. The
4 convening authority has directed Baghdad as a site, and so
5 everybody's on notice that this is where it's going to be. And now,
6 you want it to be moved somewhere else, even though the Rule permits
7 and the government has done nothing to prevent you from bringing
8 these witnesses in, and has both agreed to stipulate if they won't
9 come in or pay if they do. And you're saying I----
10ICDC: They haven't agreed to stip--excuse me, Judge, I didn't
11 mean to interrupt you.
12I
MJ: They don't agree to stipulate? I thought they did agree?
13I
CDC: Stipulation of fact.
14I
ATC: In our brief, we offered alternative forms of testimony, to
15 include depositions and stipulations of fact, if that's agreeable to
16 the parties.
17I
CDC: Only if it's agreeable. And the stipulations of fact that
18 we would anticipate coming from people may not be satisfactory to the
19 government.I
41-t).() (2)
MJ: Mr. 1111111 let me ask you this. If a witness testifies and
21 we move this somewhere where the witness shows up and testifies,
22 that's testimonial evidence, true?
20I
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1ICDC: Sure.
2I
MJ: And then their opinion, they'll give whatever their opinion
3 is, true?
4I
CDC: Of course.
5I
MJ: And so, the government says, we're going to stipulate to
6 their expected testimony. Are they supposed to stipulate to what
7 they say is fact?
8I
CDC: Well, I think the Rule suggests that it has to be a
9 stipulation of fact, Your Honor.
10IATC: Under 1001, that is correct, that you have to stipulate
11 that it's fact as opposed to expected testimony if----
MJ: Well, I understand what the Rule says, but what you're
12I
13 saying the fact would be what? Give me an example of what you want
14 them to stipulate to as a fact?
CDC: Well, I certainly want them to stipulate to the fact that
15I
16 the warden from Buckingham is going testify that the procedures
17 employed at Abu Ghraib were simply so far out of bounds of what
18 normal prison conduct is that----
MJ: Sut that sounds to me like your stipulation of fact of what
19I
20 he would say.
21I
CDC: What are you going to do in a stipulation of fact except
22 say what he is going to say?
195 I018363
1IMJ: Okay, but then I think we're parsing the terms here, but
2 okay. And government, do you have any objections--
3IATC: I have no objection, Your Honor.
I
4 MJ:I
--to stipulating as fact of what these people would say?
5I
ATC: That's correct, Your Honor.
6I
CDC: Well, is that carte blanche, that we just simply give the
7 government whatever we want our witnesses to say?
8I
MJ: Well, no, then they call the witness up and see what the
9 witness will say then. I mean, don't you think that's the way the
10 system works?
11ICDC: No.
12I
MJ: No, wait a minute, are you telling me that you think you
13 ought to make them sign something that they can't confirm as true?
14I
CDC: No, not at all, not at all. I'm simply saying that they
15 may find that the stipulation of fact is unsatisfactory for their
16 purposes, and then I'm left with what? A stipulation of fact is not
17 a solution in this case, I do not believe, Your Honor, because it's
18 too high a standard. If it were a stipulation of expected testimony,
19 I think I would be on a lot shakier ground. But a stipulation of
20 fact----
196 I018364
4
1 MJ:- Mr. 1111111M as you define "stipulation of fact" in this
2 case, it strikes to me as the government would have no problem, am I
3 wrong?
I
4 ATC: You're not wrong, Your Honor.
I
5 MJ: Draft them up, give it to them, and they'll sign it.
I
6 CDC: That doesn't get us----
I
7 MJ: I know, we've down a digression, I understand that.
I
8 CDC: That really doesn't get us anywhere.
I
9 MJ: So I mean, the bottom line is, the Rule does contemplate in
10 sentencing proceedings alternative forms of testimony.
11ICDC: Oh, it does, indeed, but the preface to it is that the
12 government--the reason for that is that the government is going to
13 pay for it, you see. I mean, the idea is, under 1001(e), if you'll
14 look at the prefatory remarks, Your Honor.
15I
MJ: Go ahead.
16I
CDC: So if you'll look at the prefatory remarks, it refers to
17 the initiation of this particular provision only in those cases where
18 the government is paying for the expense. You know, John Kerry and
19 George Bush's kids never have to worry about 1001(e), Your Honor.
6)0-vib 7,e) 4/
20Iut if
MJ: I'm not sure what relevance that has, mr.1111m.
21 you read the Rule, it says, "A witness may be produced to testify
22 during presentence proceedings through a subpoena or travel orders at
197
018365
1 government expense tnly if...," and then they have all these
2 requirements, other forms aren't acceptable. But what I'm saying is,
3 that's not being triggered because the government is going to pay for
4I
this.
5I
CDC: Well, it is being triggered, it's being triggered because
6 the government's paying for it.
7I
MJ: Okay, but you're saying is that the subparagraph Delta,
8 "Other forms of evidence would not be sufficient to meet the needs of
9 the court-martial to determine an appropriate sentence," doesn't
10 apply because the government is willing to pay.
11ICDC: No, I'm not, Your Honor, at all. What I'm suggesting to
12 you, if the government were not paying for these witnesses, that
13 section would have no application to this accused. We're not paying.
14 That section would have no application. If, for example, the accused
15 were to pay for his own witnesses, your standard of review would not
16 be----
I
17 MJ: Well, there is no standard of review because I don't review
18I
.
I
19 CDC: Well, your standard of analysis with respect to what
20 witnesses will be produced by you is a different standard than the
21I
1001(e) standard.
198I018366
1IMJ: But if the government is not paying and you're not asking
2 me to make the government pay, then I don't review how the witness
3 got there. They just show up, right?
4I
CDC: Well, no, not really. You still, if you'll look at the
5 preceding paragraph of that section, 1001(e), you still have an
6 obligation to order production, but the accused pays for it.
7I
MJ: What I'm simply saying is that if you don't want the
8 government to pay for a witness, how that witness gets there is not
9 my call.
10ICDC: Correct.
11IMJ: That's all I'm saying. Now, the witness may show up and
12 have irrelevant testimony, then that is my call. But that's a non-
13 issue. What I'm simply saying here, is that they're willing to pay.
14 The witnesses are not willing to come. That's the starting point.
15I
CDC: At the moment.
16I
MJ: You say, "At the moment," well, that's what I got.
17I
CDC: Right.
18I
MJ: And then they've said they'll enter into a stipulation of
19 fact containing the matters to which the witness is expected to
20 testify. They said they'll do that, okay. They've also said they'll
21 introduce whatever else, alternative forms of testimony you want to
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