*1 STATES, Appellee, UNITED SMITH, Sergeant,
Michael J. Army, Appellant.
No. 09-0169.
Crim.App. No. 20060541. Appeals
U.S. Court of
the Armed Forces.
Argued Oct. 2009.
Decided Feb.
317 BAKER, J., opinion of the delivered STUCKY, ERDMANN, Court, in which C.J., JJ., EFFRON, RYAN, filed a joined. concurring part separate opinion the result. Lieutenant Colonel Appellant:
For Jona- Mark Telli- (argued); Colonel than F. Potter tocci, Gallagher, Cap- Major M. Grace brief). (on Gregoire tain Alison L. Borgerding Major Karen J. Appellee: For III, F.J. Allen (argued); Norman Colonel Kiley, and Francis C. Lieutenant Colonel (on brief); Lieutenant Major Gumbs Lisa L. Captain L. Foss Colonel Martha Michael G. Ponds. opinion
Judge delivered BAKER Court. composed of mem- general court-martial contrary Appellant,
bers convicted prisoners, maltreat conspiracy to pleas, of Mili- Code of Uniform violation Article (2000), (UCMJ), § 10 881 tary U.S.C. Justice maltreatment, in viola- specifications of two UCMJ, § 10 U.S.C. tion of Article (2000), duty, violation dereliction (2000), UCMJ, § 10 U.S.C. Article acts, in violation of Article indecent UCMJ, (2000). below, § 10 U.S.C. The mem- For the reasons set forth we conclude bers sentenced to a bad-conduct did not err and the discharge, days, confinement legally for 179 reduc- evidence was sufficient. E-l, grade
tion to the
and forfeiture of
pay per month for three months. The
*3
$750
BACKGROUND
convening authority approved
findings,
military working dog
was a
approved
but
a sentence that included con-
(MWD)
Baghdad
handler at the
Central Con-
months,
finement for three
a bad-conduct
Ghraib,
Facility
finement
Iraq.
at Abu
Prior
E-2,
discharge, reduction to
and forfeiture of
deployment, Appellant
was certified as a
pay per month for
$750
three months. On
dog
Military
handler at the
Working Dog
review,
Army
the United States
Court of
Course,
Handler
located at Lackland Air
Appeals
specifications
Criminal
dismissed the
part
Force Base.
dog
As
of the
handler
alleging
duty,
indecent acts and dereliction of
course, Appellant
proper
was instructed on
affirming
remaining findings
and the sen-
Sergeant
use of his MWD.
First Class
Smith,
tence. United States v.
No. ARMY
(SFC)
chief,
Hathaway, the course
testified
2008).
(ACt.Crim.App.
Oct.
training
received at Lackland includ-
Appellant’s petition,
granted
On
we
review
manage
safely,
ed how to
a dog
including
following
of the
issues:
keeping
dog
away
peo-
fifteen feet
from
and,
ple
possible,
that is not
keep-
I.WHETHER
THE MILITARY
ing
Ghraib,
muzzled. At Abu
JUDGE ERRED BY FAILING TO
military working dogs
primarily
were used
INSTRUCT ON OBEDIENCE TO
a show of force:
to deter detainees from
LAWFUL
IT
ORDERS AS
PER-
attempting
escape
or riot.
TAINED TO MALTREATMENT
(COL) Pappas,
Colonel
commander of the
BY
A
HAVING
MILITARY
Brigade
Iraq,
205th MI
testified he au-
(MWD)
WORKING DOG
BARK AT
conjunction
thorized the use of
MWDs
A DETAINEE WHEN THERE
with
interrogation during
one
December
WAS NO EVIDENCE BEFORE
2003.
THE MILITARY JUDGE THAT
SUCH AN ORDER WAS ILLE-
Appellant and working dog participated
his
GAL.
interrogation
in the
of detainee Ashraf Ab-
Al-Juhayshi.
dullah
Testimony indicated
II.WHETHER
THE MILITARY
during
interrogation Appellant
al-
JUDGE ERRED
HE
WHEN
DID
lowed his unmuzzled MWD to bark in Mr.
NOT INSTRUCT THE PANEL ON
Al-Juhayshi’s
pull
face and
(LAW-
sandbag
off
OBEDIENCE TO ORDERS
13, 2004,
his head with
UNLAWFUL)
January
its teeth. On
FUL OR
IT
AS
(SGT)
by Sergeant
was seen
Ket-
PERTAINED TO MALTREAT-
unmuzzled,
zer with
barking
inMWD the
MENT BY
HAVING
doorway
of the cell of two
detainees.
BARK AT JUVENILE DETAIN-
fear,
The detainees
Ap-
screamed with
EES.
pellant
saying shortly
was overheard
thereaf-
III.WHETHER
THE
EVIDENCE
“my buddy
ter:
having
and I are
a contest to
ALL
FOR
MALTREATMENT
get
see if
can
we
[detainees] to shit them-
SPECIFICATIONS WAS LEGAL-
already
selves because
piss
we
had some
INSUFFICIENT,
LY
BECAUSE
themselves.”
THE DETAINEES WERE NOT
incidents,
“SUBJECT TO
response
[APPELLANT’S]
to these two
ORDERS” AND DID
charged
NOT HAVE lant was
with maltreatment
A “DUTY TO
conspiracy
trial,
OBEY.”
to maltreat.1 Before
Specification
Charge
1.
3 of
January
states:
December 2003 and on or about 3
Smith,
Sergeant
Army,
In that
did maltreat
Michael J.
Mr. Ashraf Abdullah Al-
Baghdad
Juhayshi,
person subject
at or
near
Central
Correctional Facil-
to his
Ghraib,
ity,
Iraq,
harassing
Abu
between
threatening
Al-Juhayshi
or on about 29
916(d); R.C.M.
(C.A.A.F.2000); R.C.M.
the mal-
to dismiss
a motion
filed
defense
920(e)(3).
to state
for failure
specifications
treatment
denied this
offense.
an
any
is a
“[i]t
defense
Specifically,
later,
the Government’s
after
motion
acting pursuant
accused
offense
for a
merits,
a motion
denied
on
ease
the orders
knew
the accused
unless
orders
sufficient
lack of
guilty
finding of not
ordinary sense
person of
or a
unlawful
to be
for Courts-Martial
Rule
known the
have
understanding would
evidence,
(R.C.M.)
At the dose
916(d). The
R.C.M.
unlawful.”
orders
upon, al-
agreed
judge gave
be
proving
the burden
prosecution bears
panel
instructions
complex set of
beit
the defense
reasonable doubt
yond a
3 of
Specification
Regarding
members.
*4
916(b). “The test
R.C.M.
not exist.
charged
I,
was
with
Appellant
Charge where
reasonably
defense is
an affirmative
Al-Juhayshi,
Mr.
of
maltreatment
some
record contains
is whether
raised
that,
to
“An order
instructed
military judge
may
court members
to which the
military
in
dogs to aid
military working
use
Davis, 53
they
desire.”
if
so
credit
attach
an order was
find
you
if
such
interrogations,
ques
“This
reviews
Court
atM.J.
Re-
an
order.”2
be
unlawful
given, would
correctly
military judge
of whether
tion
I, the mal-
Charge
of
Specification 5
garding
on a de
was lawful
an order
that
determined
detainees, the mili-
juvenile
of
treatment
New, 55
v.
M.J.
United States
basis.”
novo
to
on obedience
instruct
judge
tary
did
(C.A.A.F.2001).
95,106
orders,
otherwise.
or
lawful
a lawful
of
attributes
essential
(1)
by competent authori-
issuance
include:
ANALYSIS
law
by applicable
person authorized
ty —a
(2)
order;
communication
an
give such
to
to
on Obedience
to Instruct
I: Failure
Issue
to
specific mandate
express a
words that
of
Orders
Lawful
(3)
act; and
rela-
specific
not do a
or
do
“
jury
of whether
question
‘The
military duty.
to a
tionship of the mandate
law,
question
[is]
instructed
properly
was
”
313,
Deisher,
317
61 M.J.
v.
States
States United
United
thus,
de novo.’
is
review
and
Courts-
(C.A.A.F.2005);
Manual
see also
(C.A.A.F.2002)
18,
McDonald,
20
57 M.J.
v.
14.c(2)(a)
IV, para.
Martial,
pt.
McDonald)
United States
(quoting
(alteration
in
added
to
ed.) (MCM).
presumed
(2005
Orders
Maxwell,
424
States v.
United
Deisher,
317. Addi-
M.J. at
61
lawful.
or
lawful
(C.A.A.F.1996)).
“Obedience
if
that
he reason-
Appellant contends
tionally,
which the
on
defense
affirmative
is an
ders”
lawful,
in
even if
order was
ably believed
duty to in
sponte
judge has a sua
military
unlawful,
the members
then
fact
it was
reasonably raised.
if the defense
struct
the defense
on
instructed
have been
Davis,
205 should
M.J.
See United
detainees,
in order
ment of subordinate
growling
barking
mili-
his
with
unmuzzled
conspiracy
said
object
effect
working dog.
tary
directed,
per-
encouraged, or
Sergeant Smith
that Ser-
Charge
"In
1 states:
Specification 5 of
working dog
Smith,
his unmuzzled
mitted
Army,
near
at or
U.S.
J.
geant Michael
to make
in order
growl at detainees
bark
Facility, Abu
Baghdad
Correctional
Central
on them-
defecate
or
urinate
the detainees
January
did
Ghraib, Iraq,
or
on
about
detainees,
subject
persons
selves.
two
maltreat
threatening
harassing
them
what,
anything,
if
agree on
parties do not
2. The
growling
barking
mili-
his unmuzzled
with
his MWD.
do with
Appellant
ordered
was
working dog.”
tary
reflect
record does
They
agree do
Charge 2 states:
Specification 1 of
in-
to do and
anything
was ordered
Smith,
he
Army,
what
Sergeant
J.
Michael
In
did,
put
properly
to the mem-
deed
Baghdad
Correctional
Central
near
at or
an order
question as to whether
the factual
Ghraib,
bers
Iraq,
on
Facility,
between
Abu
view,
military judge’s
given.
In our
was
or about
2003 and on
15 November
about
working dogs to
aid
descriptor
"use
Sergeant
conspire
Santos
with
January
any possi-
encompassed
interrogations”
Cardona,
Uni-
an offense
to commit
by Appellant at trial.
argued
Justice,
"order”
ble
maltreat-
Military
to wit:
Code
form
of lawful orders.
some evidence
the noncommissioned officer
charge
presented
must still be
block,
a lawful order
confinement
testified that Mr. Stefa-
given.
nowicz told him that
the use of
during
the Mr. Al-Juhayshi
interrogation had been
Appellant argues that an obedience to
approved.
Fredrick,
turn,
SSG
Ap-
told
lawful orders instruction should have been
pellant
to use his
during
Mr. Al-
given
panel
regarding the use of his
Juhayshi’s interrogation. The record does
dog against
Al-Juhayshi
Mr.
as some evi
not reflect what actions SSG Fredrick au-
presented
dence was
at
trial that
thorized; neither does it
indicate
SSG
received an order to use his working dog to
Fredrick
directed
to remove the
aid
interrogation.
Such an instruction
muzzle or to allow close contact between the
would have informed the
Ap
members that
dog
Thus,
and the detainee.
while there is
pellant had an absolute defense to the
some
evidence that
received an
charged conduct if
acting pursuant
he was
order to
working
use his
the context
a lawful
order. As
acknowledges,
Al-Juhayshi’s
interrogation,
there is
entitlement to the
required
instruction
some
order,
evidence he received an
lawful or
evidence that
order,
there was a lawful
or an
otherwise,
dog’s
remove his
muzzle or
might
order he
reasonably believe was law
*5
dog
have his
remove
Al-Juhayshi’s
hood.
ful, given to Appellant
engage
to
in the con
charged.
Davis,
duct
See
order. (1) was no evidence summary, there approval sought such he Pappas, since COL dogs in the use an order to introduced even interrogation, after in an use to MWDs (2) order, given, and such way alleged was 2003, regarding 12, memorandum an October unlawful.6 have been given, would had it been However, is no there policy.4 the CJTF-7 err Therefore, military judge did not ap- trial that this in the record on obedience giving an instruction Al- in Mr. obtained sought or proval was orders. lawful Juhayshi’s case.5 on Obedience II: Instruction Issue policy, both contrary, CJTF-7 Orders To the and October September judge gave an instruc versions, be muz- required that MWDs several of orders for tion for obedience at MWD handler control of a zled judge did offenses.7 duty as a Appellant’s times. Part all regarding such an instruction provide with compliance to act in was MWD handler for maltreatment specification “all reason- which called policies, mili contends that detainees. means of force” use all efforts to lesser able too, regard. Here tary judge erred in “[hjandlers control able to [to] be and for evi whether some question is predicate was not muz- Appellant’s MWD dog.” their defense reasonably raised dence and, arguably under although zled to lawful opposed obedience control, contact with *6 came in close lant’s orders. his bag from it the removed detainee when as to arguments three Appellant makes head. in record the exists why “some evidence” against use his Ri- to MWD short, Pappas, Chief that he was ordered COL neither First, ar- juvenile to the detainees.
vas, were authorized Fredrick nor SSG previously dog handlers had the gues LTG Sanchez’s that without an order give such with their detainees frighten to Pappas nor been ordered COL neither approval. Since view, it follows Thus, Appellant’s in MWDs. lawfully a subor- order could Rivas Chief alleged in the manner of his MWD it that use policy, contrary to CJTF-7 to act dinate effort to the command’s of was an extension to for them order unlawful have would been military military working to in aid thought to use had he he Pappas that testified 4. COL was MWDs, order such an interrogations, you if find and authority approve use of to Obedience unlawful order. given, wrong needed to would and he was later discovered necessarily re- not unlawful order approval LTG Sanchez. to an from seek person responsibility of in criminal sult if accused acts of the obeying order. The high-value detainees three for other 5. Even are order approval use to an unlawful Pappas obedience did seek done in for whom COL MWDs, responsibility requests carry criminal Pappas that those stated and COL excused therefore, were, was that order LTG Sanchez knew the accused never reached unless which a approved. was one the order never or unless unlawful under ordinary sense common person of not reach be unlawful. presented, we need know to In the context would circumstances Sanchez, high- or the ac- whether LTG decide whether conclusion as must first [Y]ou .... command, could of the chain use his within acting er officials an order under was cused order. a lawful have issued interro- such working to aid beyond a rea- you gations. convinced If judge acting stated: not 7. The the accused was doubt that sonable of obedi- the defense then such under of obedience issue has raised an The evidence you that find exist. If orders does 1, 3, ence Specifications relation to to orders in orders, you acting ... was II; accused I; Charge Charge Specification 2 of 4 of knew accused decide III; next must Charge specification under the sole illegal. orders Charge IV. An Specifications 2 and 3 frighten and control Turner, detainees. (C.M.A. ed argument 1987)). reaches too far. As recounted This Court de “review[s] novo the above, the use of MWDs aid of interroga- question whether the legally evidence is suf- tion, authorized, if only authorized in the ficient support a finding guilty.” Id. ease of a high-value certain detainee. There 93, UCMJ, Article states: is no evidence in the record that Cruelty and Any person maltreatment[.] juvenile mistook question detainees subject to this chapter guilty who is high-value detainees. Neither does the rec- toward, cruelty oppression or or maltreat- ord reflect that these detainees could of, ment any person subject to his orders reasonably have been high- mistaken for the punished shall be as a may court-martial value detainee for whom Pappas COL testi- direct. fied he authorized the use of MWDs in aid of interrogation. Additionally, Appellant’s use The elements of maltreatment as defined in dog against juveniles of his in the manner the MCM are: alleged beyond went patrolling duties to (1) That subject certain which SSG Fredrick testified the stan- accused; orders of the (SOP) dard operating procedure defined. (2) That toward, the accused was cruel argues also that he could not oppressed, or maltreated that person. have been where SGT Ketzer described with- IV, 17(b). pt. para. MCM dispute The in this guard out a allowing him access. In related case focuses on the first element the of- manner, Appellant argues that barking “[his] fense, specifically, whether the detainees yells MWD and the from detainees were in subject were Appellant’s orders for the earshot of guards, the MP who did not re- purposes of Article UCMJ. spond, indicating they fully aware arguments. First, makes three of what Appellant was doing.” implica- subject detainees were not orders. tion is Appellant’s conduct was con- Second, junior as a doned, handler he was not authorized, the command or competent, event, any to issue the orders at least his immediate chain of command. alleged. Additionally, Appellant claims personnel While may other acquiesced have may while others position have been in a or even Appellant’s condoned conduct authority detainees, over the *7 he was actions, not be- their it does not guard follow that a cause he did have access to detainees on opening a gate equivalent or door is to issu- his own and daily did not direct their ing activi- an order to use a frighten MWD to Third, ties. the detainees detainees, duty had no nor is it “some evidence” of such obey his Ohman, Quoting Mynda orders. G. Moreover, an order. SGT Ketzer testified Integrating Title 18 War Crimes into Title that there was no plan immediate to interro- Proposal 10: A to Amend the gate juveniles Code and that Appellant had the Uniform Justice, Military 57 A.F. L.Rev. goal stated making them defecate. (2005),Appellant argues, among things, other In view of the fact that Appellant’s actions “ required detainees were ‘not were ordered, neither authorized nor the mil- take an oath promising to obey the lawful itary judge did not err failing to instruct belligerent orders of the assigned forces on the defense of obedience to orders. ” guard them.’ Legal Issue III: Sufficiency Evidence for analysis Our begins with the text of the Maltreatment 93, UCMJ, article. Article specifi- legal “The test for sufficiency cally detainees, address the context of how- ‘whether, is considering ever, the evi it protect is persons intended to outside in light dence most favorable to the military. the U.S. This is in evident prosecution, a reasonable factfinder juxtaposition could clause, of the first applies which have found all the essential beyond “[a]ny elements person subject UCMJ],” to [the ” a Ober, reasonable doubt.’ United States v. clause, the second which is “any addressed (C.A.A.F.2008) (citing person Unit- subject orders.” interpre- This of MWD subject to the orders were nonbinding expla- ees in supported tation is subject to handlers. is in the MCM. nation not,” “subject to the code or whether testified Additionally, Fredrick SSG duty re- is] “by [he reason of some
when Appel- subject to his and the detainees of the ac- obey the lawful orders quired to capacity as their lant’s orders 17(c)(1). IV, It is pt. para. cused.” MCM Fredrick, if an According to policemen. SSG authority found supported persuasive also something or to to do MP told a detainee addressing the mal- case law in the limited would doing something, the detainee stop military. persons outside the treatment of consequences. face follow orders or have to Dickey, example, v. United States found Army Board of Review United view, relationship Finally, in our 93, UCMJ, to the ac- Article extended prisoner or guard and prison a between Corps of a Korean Service cused’s treatment implies prisoners guard and detainee subject accused’s orders as to the member subject guards’ orders. See Unit are (A.B.R.1956). 486, 489 employee. 20 C.M.R. Finch, 22 C.M.R. ed States “im- that it was Board of Review noted (“A (N.B.R.1956) until dis brig prisoner, per- or not such maltreated material whether service charged, a member of is Id. The subject to the [UCMJ].” sons be ... status is not regardless of his per- qualification from the victim’s essential cruelty, oppression, subjected to acts of therefore, is whether or not spective, physical harm though no maltreatment even accused, subject to the orders of the victim is ensues.”). relationship recognized This victim is a member of not whether the Fourth Geneva Conventions the Third and armed forces. U.S. well.8 fol- in this case reflects the The evidence analysis, we hold that on this Based Kimbro, Petty who
lowing. Chief Officer 93, UCMJ, applies to detainees Article entry Navy dog teams for managed three control, custody or under U.S. Ghraib, that an point at Abu testified control armed forces they members of the U.S. working dogs at Abu Ghraib SOP for Further, viewing conclude that or not. we provid- approved in December 2003 light most favorable to handlers, the evidence including Appellant. all ed to juror could have a reasonable prosecution, tasked Among things, the SOP other Al-Juhayshi and the encourage found that Mr. escape attempts, lant to “reduce obey Appellant as duty had improve the effec- detainees compliance, detainee Similarly, prisoner guard. inspec- prison their compound searches and tiveness of role Appellant’s that detainees the detainees indicated status of tions.” The SOP *8 duty imparted a for them controlling the “Use them subject to his orders. Under Engagement,” obey Appellant. on “Rules of of Force” section yell “stop” were instructed dog handlers MWD, with the any release of a
prior to CONCLUSION the any will follow expectation that detainee Army decision of the United The that these stop. It is self-evident order to affirmed. Appeals is Court of Criminal only if detain- be effective procedures would the Treatment 12, 1949, Relative to neva Convention the Geneva did not introduce 8. The Government trial, 82, Aug. U.S.T. nor did it brief 6 into evidence at of War art. Conventions Prisoners 3316, how, whether, argue (Third and if the view as to its Conven- Geneva U.N.T.S. 135 75 applied in Geneva Convention Third or Fourth the context of Abu tion) parameters (appearing within its to include time of Ghraib at the orders); duty Gene- person’s to follow a confined Therefore, we cite the Geneva lant's conduct. Civil- the Protection of Relative to va Convention only proposition as a for the Conventions general 1949, 12, War, Aug. 6 in Time of ian Persons obliged to follow matter detainees (Fourth Geneva U.N.T.S. 287 75 U.S.T. captors a and not as of their the lawful orders Convention). See, sufficiency. e.g., finding legal Ge- basis for 324 EFFRON, Judge (concurring reasonable, Chief in part even cannot transform an un- result):
and in the
lawful order into a lawful order under R.C.M.
916(c). As noted in
principal opinion,
agree
I
principal opinion
with the
record in this case establishes that the orders
military judge did
respect
not err with
Appellant claimed to receive —to
mili-
use his
Issue I because the claimed order was not
tary working dog in
interrogation—
aid of
by competent authority.
issued
a
See United
were not
competent authority.
issued
a
Smith,
(C.A.A.F.
States v.
Second, with R.C.M. issue, and our assigned deci- in Calley, 541-43, sion 22 C.M.A. contends that the at judge erred in not 26-28, providing C.M.R. at regarding an instruction on defense of the lawful orders defense. obedience to orders. defense, given Under the lawful The instruction orders an act proper performance judge “done enabled the of a members legal duty justified evaluate and not unlawful.” “knew the or- (R.C.M.) 916(c); Rule for ders to Courts-Martial be unlawful or ordinary see 916(d) R.C.M. sense and (referring understanding Discussion would have known 916(c) R.C.M. providing 916(d). orders to be defense with unlawful.” R.C.M. respect to an pursuant particular case, act done In to a may lawful there signifi- order). 916(d) In contrast to the defense of cance obedi- under R.C.M. to the distinction 916(d) ence to orders under R.C.M. between an order that is unlawful because of Calley, United States v. defect, C.M.A. case, administrative as in this (1973), C.M.R. 19 the lawful orders defense an order that is unlawful because it com- does not entail consideration of whether an crime, mands the commission of a as in Cal- reasonably accused believed that an ley. case, present however, 916(c) Compare was lawful. R.C.M. has not contended that military judge 916(d); R.C.M. Dep’t see also Army, given should have additional instructions 27-9, Legal Services, Pam. Military Judges’ regard. Under the circumstances of (2002) § Benchbook para. ch. case, 5-8-2 did not err with (setting forth the applicable instruction respect to the manner in which he instructed 916(c)). R.C.M. accused, 916(d). beliefs of an the members under R.C.M.