Tuesday, May 25, 2004
Abu Ghraib Witness Disciplined: What's Missing
The Daily Telegraph reports that a witness to Abu Ghraib is being administratively disciplined for talking to reporters in violation of an order given to him by his company commander.
What's missing from the story is that the 'flagging' appears to have been done as part of a field grade Article 15 hearing before the battalion commander. The Article 15 hearing is a nonjudicial, but formal proceeding in which the defendant is made aware of his rights, is entitled to due process, consultation with an attorney, etc.
No mention of this is made in the article, but it seems to me that that's the only way the battalion commander could legally slap an administrative 'flag' on the soldier, or take other adverse action (although he may be able to revoke a security clearance--especially if it's provisional, since those are often granted on the signature of the battalion commander anyway, pending formal vetting by the FBI and other agencies)
It seems to me that once this soldier was notified that he would be a witness in the investigation, the Army was fully within its rights to order him not to discuss the investigation with anyone else, pending the investigation. This in order to protect the integrity of his testimony.
I don't see any suggestion that anyone in the unit pressured him to falsify statements to investigators, though.
I'd love to hear from the military lawyers on this point. Soldiers do not give up the entirety of their constitutional rights by a long shot. And Army policy does not forbid them, generally, from speaking to reporters about events within their level of expertise and experience. Lieutenants are discouraged from waxing philosophical about DoD level grand strategy, but they can talk to reporters all they want about what goes on within their platoons and companies. And they can even be quite forthright with bad news.
It seems to me, though, that the Army had a legitimate, compelling interest in prohibiting this soldier from discussing his testimony, pending the investigation. I can quibble whether the mere act of talking to reporters actually compromised the investigation either way, but administrative discretion leads me to defer to the judgement of the command.
Now, if the Bn Commander did not conduct an Article 15 proceeding, but simply summarily flagged the soldier's records on his own, then that's probably grounds for an IG complaint.
Sure, there's a lot of media people who would love to make this into a case of "a-HAAA!!!! Gotcha! You're punishing your whistleblowers!"
And I'd certainly take a hard look at that angle if it were my story, too.
But as things stand now, this story doesn't strike me as a very big deal.
Splash, out
Jason
What's missing from the story is that the 'flagging' appears to have been done as part of a field grade Article 15 hearing before the battalion commander. The Article 15 hearing is a nonjudicial, but formal proceeding in which the defendant is made aware of his rights, is entitled to due process, consultation with an attorney, etc.
No mention of this is made in the article, but it seems to me that that's the only way the battalion commander could legally slap an administrative 'flag' on the soldier, or take other adverse action (although he may be able to revoke a security clearance--especially if it's provisional, since those are often granted on the signature of the battalion commander anyway, pending formal vetting by the FBI and other agencies)
It seems to me that once this soldier was notified that he would be a witness in the investigation, the Army was fully within its rights to order him not to discuss the investigation with anyone else, pending the investigation. This in order to protect the integrity of his testimony.
I don't see any suggestion that anyone in the unit pressured him to falsify statements to investigators, though.
"I wanted to make sure I got out what I could in what time I had before I was silenced at a higher level," he said. "I'm standing behind my First Amendment right to free speech, and it's a matter of does the constitution have more weight than a company level commander?"
I'd love to hear from the military lawyers on this point. Soldiers do not give up the entirety of their constitutional rights by a long shot. And Army policy does not forbid them, generally, from speaking to reporters about events within their level of expertise and experience. Lieutenants are discouraged from waxing philosophical about DoD level grand strategy, but they can talk to reporters all they want about what goes on within their platoons and companies. And they can even be quite forthright with bad news.
It seems to me, though, that the Army had a legitimate, compelling interest in prohibiting this soldier from discussing his testimony, pending the investigation. I can quibble whether the mere act of talking to reporters actually compromised the investigation either way, but administrative discretion leads me to defer to the judgement of the command.
Now, if the Bn Commander did not conduct an Article 15 proceeding, but simply summarily flagged the soldier's records on his own, then that's probably grounds for an IG complaint.
Sure, there's a lot of media people who would love to make this into a case of "a-HAAA!!!! Gotcha! You're punishing your whistleblowers!"
And I'd certainly take a hard look at that angle if it were my story, too.
But as things stand now, this story doesn't strike me as a very big deal.
Splash, out
Jason
Comments:
I don't see where he has a complaint, in civvy street witnesses are not supposed to talk to the press about criminal investigations - though it is up to the prosecutor whether to issue a formal gag notice or to prosecute those who break it.
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