WASHINGTON – WASHINGTON (AP) — A judge on the U.S. military's highest court asked Monday whether a "Catch-22" prevented the alleged ringleader of detainee abuses at Abu Ghraib prison in Iraq from getting a fair trial in 2005.
Judge James E. Baker raised the question during oral arguments on Army Pvt. Charles A. Graner's request that the U.S. Court of Appeals for the Armed Forces set aside his conviction and order a new trial.
Graner, 41, of Uniontown, Pa., didn't attend the 45-minute hearing before the five-judge court. The former military police corporal is serving a 10-year sentence at Fort Leavenworth, Kan., for offenses in the fall of 2003 that included stacking naked prisoners into a pyramid, knocking one of them out with a punch to the head and ordering prisoners to masturbate while soldiers took pictures.
Graner maintains the actions were part of a plan directed by military intelligence officers to soften up prisoners for interrogation.
He contends a military judge wrongly refused during a pretrial hearing to order the government to hand over then-classified documents that would show that some of the harsh treatment of detainees reflected "enhanced interrogation techniques" approved by then-Defense Secretary Donald Rumsfeld.
The government maintains that since those documents were released a day after the pretrial hearing, the defense had access to them before the trial, and so there was no error.
Baker focused on the defense's difficulty in seeking a Department of Defense memo that, because of its classified status, could not be requested by date or author — a situation Baker called a Catch-22.
"If everything's classified and they hear rumors of a memo to DOD, now how do you get past that?" Baker asked government lawyer Capt. Chad M. Fisher.
Fisher replied that after the documents were made public, the defense had the ability to review them.
Another judge, Charles E. Erdmann, said there seemed to be "an enormous amount of fog and confusion" about the documents.
The defense was denied access to the memos during a pretrial hearing in June 2004 by a judge who cited their privileged status. The documents included Rumsfeld's April 16, 2003, memo approving "enhanced measures" for interrogating prisoners at Guantanamo Bay and Afghanistan.
The measures included tactics that could cause temporary pain, and undefined categories such as "fear up harsh" and "pride and ego down," that interrogators could interpret as they saw fit.
After defense attorney Charles W. Gittins described the memo to the court, Chief Judge Andrew S. Effron asked, "How do you get from there to a naked pyramid?"
Gittins said the same harsh techniques approved for Guantanamo and Afghanistan were employed at Abu Ghraib. He said "putting detainees in the nude would qualify as harming the ego of the detainees."
Gittins opened his remarks by describing Graner as "a political prisoner of the failed United States Iraq policy and unnecessary war."
Graner is among 11 low-ranking soldiers convicted of crimes at Abu Ghraib. Seven were from his unit, the 372nd Military Police Company of Cresaptown, Md.
The court last month refused to hear an appeal by former Pfc. Lynndie England, another of the unit's soldiers.
The court is expected to rule on Graner's case before the current term ends in August.
Eds: CORRECTS rank to Pvt. Note contents in graf 3.