Friday, May 14, 2004; Page A1In Iraq Prison
Trial, Defense May Rely On Photos of
Abuse Lawyer
for One Guard Claims Picture Shows His Client
Taking Orders From Others - Will Generals Take the
Stand? By CHRISTOPHER COOPER
Staff Reporter of THE WALL STREET
JOURNAL HOUSTON -- The photograph, taken
from the gangway of Tier 1 Bravo in Iraq's
now-infamous Abu Ghraib prison, seems damning. Army
Specialist Charles Graner Jr. watches
impassively as an overweight man in American
military fatigues arranges a pile of naked Iraqis
nearby.  But
lawyer Guy Womack plans to make that photo a
cornerstone of Spc. Graner's defense. Spc. Graner,
who gave Mr. Womack the photograph, scratched in
hand-drawn numbers on each of the figures, some of
whom are identified in an accompanying caption.
Four of the soldiers in the photograph are from
military intelligence, according to information
Spc. Graner provided Mr. Womack. And the
out-of-shape man adjusting the Iraqis, Spc. Graner
told his lawyer, is a civilian under contract to
military intelligence. "Look at that guy, he's too
fat to be in the Army," Mr. Womack says. "And look
at my MP -- he's not giving orders, he's taking
them."
The photo goes to the heart of Mr. Womack's
argument -- that military-intelligence officers and
civilian interrogators were barking the orders at
the prison, and low-ranking military police such as
Spc. Graner were simply following them. If Spc.
Graner's identifications are accurate, the photo is
one of the few made public so far that depict
intelligence personnel with naked Iraqis and not
just military police. It could be key to
determining who was in charge. Turning seemingly incriminating evidence on its
ear is something of a specialty for Mr. Womack, a
Houston lawyer and former Marine judge advocate, or
military prosecutor. As a civilian defense lawyer,
Mr. Womack once defended a prison guard for kicking
a prone and naked prisoner in an incident caught on
videotape. The guard was acquitted. In Korea, Mr.
Womack took a videotaped military reconstruction of
a negligent-homicide case and turned it to his
client's favor, resulting in another acquittal, and
sparking rioting among local students.  The
track records of Mr. Womack and other lawyers
retained by the other implicated soldiers suggest
that the Bush administration's plan to win quick
convictions may be wishful thinking. In military
court, defendants are permitted to bring in
high-octane lawyers such as Mr. Womack in addition
to the military counsel they get automatically.
Furthermore, Spc. Graner's jury will be drawn from
soldiers in the war zone, who are unlikely to have
much sympathy for Iraqi detainees. Under military
rules, if Mr. Womack is able to convince more than
a third of the panel that the prosecution failed to
prove his client guilty, Spc. Graner walks.
PHOTO
CAPTION: Spc. Charles Graner etched numbers into
this photo in order to identify himself and
others at Abu Ghraib prison. Spc. Graner is
labeled No. 1 in the photo, which shows Iraqi
prisoners bound together. According to Spc.
Graner, No. 2 is a civilian contractor for
military intelligence, Nos. 4, 5, 7 and 8 are
military-intelligence soldiers, and Nos. 3 and 6
are military police. No. 9 is not identified.
Lawyers are expected to use the photo in Spc.
Graner's defense. Some notes by Spc. Graner have
been cropped out of the photo. Spc. Graner says what he has come to fear most
in this case is the other soldiers involved. In
military courts, all defendants go on trial
separately, which might prompt some to point the
finger at others. "Over the past two
years, I have learned soldiers like to stab each
other in the back," Spc. Graner says in an
e-mail sent via his attorney. "The higher the
rank, the bigger the knife." Spc. Graner, who is expected to be formally
charged with maltreatment and indecent acts at a
hearing on May 20, hired Mr. Womack by e-mail on
May 1. Two other lawyers he contacted refused to go
to Iraq, where the courts-martial will be held. He
now sends Mr. Womack a half-dozen missives a day.
"It may sound silly to the average person but Mr.
Womack is also a Marine," Spc. Graner wrote in an
e-mail sent via his attorney. "I felt better having
a Marine sit next to me in the courtroom than
anyone else." Some of the other Abu Ghraib defendants have
attracted a dream team of military attorneys. The
list includes Gary Myers, onetime lawyer for Lt.
William Calley, the Vietnam soldier accused of
ordering the My Lai massacre 30 years ago. He's
representing Staff Sgt. Ivan "Chip" Frederick, one
of the soldiers implicated in the scandal. Frank
Spinner, who represented Air Force pilot Kelly
Flinn in 1997 when she was charged with adultery,
is handling the defense of Spc. Sabrina Harman. Lt.
Calley was convicted and sentenced to life; Spc.
Flinn received a general discharge, rather than the
honorable one she requested. The defendants who are talking say they were
simply taking orders from military intelligence
officers, Central Intelligence agents and
government contractors who told them to "soften up"
prisoners for interrogation. Many top officials at
the Pentagon have rejected this defense, saying
they have seen no evidence suggesting the incidents
of abuse at Abu Ghraib were anything more than the
independent acts of an undisciplined cadre of
military police. Citing longstanding policy, a Pentagon spokesman
refused to discuss Mr. Womack's tactics or any
specific aspect of the legal proceedings. But in a
recent congressional hearing, Gen. Peter
Schoomaker, the Army's chief of staff, said he
believes the soldiers caught up in the scandal were
rogues, and that their case is an isolated one. "I
think this is a great example of the confluence of
a leadership void and people that deliberately were
participating in things they knew to be wrong," he
said. "And I am convinced that this notion that
there is somehow a systematic program to do this is
incorrect." At least one of the soldiers, Spc. Jeremy C.
Sivits, due to go to trial May 19, is widely
expected to plead guilty and become a cooperating
witness. But Mr. Womack, who plans to fly to Iraq
in two weeks to see his client, vows no such
strategy. "We're going to trial," he says. "And I
plan to call a lot of generals." The Graner case has practically overwhelmed Mr.
Womack's tiny suite in downtown Houston. On any
given day in the past two weeks, a camera crew was
filming in his office. A Georgia transplant who favors wearing
hand-tooled burgundy cowboy boots with his
single-breasted suits, Mr. Womack, a 51-year-old
father of three, joined the Marines after finishing
law school in 1980. He spent 10 years on active
duty, the bulk of it as a military lawyer. Consumed
with the law and military justice, Mr. Womack
brought his children up with an unorthodox
assortment of bedtime stories. "Other kids got
fairy tales, but Dad always told us about the cases
he was prosecuting," says his daughter Paige
Caddle, who is now his legal assistant. "It was
always, 'Once upon a time, there was a soldier who
murdered a man...' " In 1990, Mr. Womack resigned his Marine
commission and did a stint in the reserves, landing
a job as a federal prosecutor in Houston. He later
switched to private practice, handling drug cases
and whatever else he could scrounge up. In 1999,
Mr. Womack took on the court-appointed case of
Robert Percival, a Brazoria County prison
guard accused of attacking a group of Missouri
inmates who had been sent to Texas because of
prison overcrowding. The incident occurred in 1996, though it took a
year for the videotape to surface. After smelling
marijuana, a group of guards, including Mr.
Percival, entered the cellblock where the Missouri
inmates were housed and began shaking the place
down for contraband. The situation quickly
escalated into bedlam. The guards retreated from
the cellblock but returned armed with a dog and a
shotgun, Mr. Womack says. A young convicted murderer named Tony
Hawthorne got the worst of it, according to Mr.
Womack. Forced to the floor, Mr. Hawthorne can be
heard screaming when a police dog attacks him. Mr.
Percival's contribution was a vicious kick to Mr.
Hawthorne's backside as the guards struggled to
subdue him. Mr. Womack says he took one look at the tape and
blanched. "It looked like a civil-rights
violation," he says. "I thought we were in deep
kim-chee, as they say over in Korea." (Kim-chee is
a Korean delicacy.) Mr. Womack decided to confine his research to
the question of proper use of force, a mushy
subject that's nearly always defined by individual
circumstances. An expert he found concluded that
Mr. Percival's technique was lousy. But the proper
technique for the occasion -- a knee drop to the
back -- would almost certainly have left Mr.
Hawthorne crippled for life, Mr. Womack argued. Of the four guards charged, one took a plea and
was sentenced to a year in prison. A second was
convicted of kicking Mr. Hawthorne and received a
total of 3* years in prison, after being convicted
in an unrelated prisoner-abuse case. The jury came
back hung on the dog handler. And Mr. Percival was
acquitted outright. The dog handler immediately
hired Mr. Womack to handle his retrial. Federal
prosecutors dropped the case. If Mr. Womack learned anything from the case, it
was that repetition could render virtually anything
mundane. While the prosecution had used the most
explosive excerpts of the videotape in presenting
its case, Mr. Womack let the machine run, screening
all 90 minutes of the tape for the jury and
replaying it every chance he got. "With the video -- with these Graner pictures --
you got to show them a lot," he says. "They're like
crack cocaine: The first time, it's powerful stuff.
But the effects diminish every time you do it
again." In another case, Mr. Womack represented Sgt.
Mark Walker, an American soldier in Korea,
who in June 2001, ran over two 13-year-old
schoolgirls with a 60-ton military vehicle. To many
Koreans, the incident crystallized resentment
toward the 37,000 American soldiers stationed in
the country. In late 2002, Sgt. Walker was brought
before a court-martial on two counts of negligent
homicide. The case again turned on a videotape, this time
a reconstruction of the accident that had been
prepared by military investigators. Parsing the
tape, Mr. Womack was able to prove that Sgt.
Walker's field of vision was so limited that he
couldn't have possibly seen the Korean girls
standing on the road shoulder. The jury was
convinced. Sgt. Walker was acquitted. Rioting in
Seoul went on for weeks. Unlike many of the other pictures made public,
the Graner photo is an overhead shot taken from the
upper deck of Tier 1 in Abu Ghraib that appears to
have been taken covertly. It shows at least eight
people dressed like soldiers milling about in a
corridor, many of them seemingly oblivious to the
three naked Iraqis lying on a concrete floor about
midframe, arranged in stylized, prone poses. Spc.
Graner, rubber-gloved hands on hips, coolly
observes the scene while an overweight man in Army
fatigues appears to make minor adjustments to the
human tableau on the floor. (Spc. Graner has
appeared in numerous other Abu Ghraib photos.) It remains to be seen whether Mr. Womack can
prove that his client actually received such orders
from other people in the photo, since the orders
clearly weren't written down and Spc. Graner is
unlikely to testify himself. Another complication, Mr. Womack says, is the
pressure in Washington for convictions.
President Bush has already said the soldiers
in the pictures will be punished, which Mr. Womack
considers tantamount to convicting his clients
before trial. In response to this, Mr. Womack has
embarked on an aggressive publicity campaign,
granting up to a half-dozen television interviews a
day. He's discounting his usual fee for Spc.
Graner, but he's already picked up one new client
from all the attention. "It's like an ad in the
Super Bowl, only it's been going on for 10 days,"
he said. |
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