Monday, January 23, 2006

Chief Welshofer and the question of intent 
A reader, Al Maviva, who commented quite a bit around the blogosphere on the NSA story a couple of weeks ago, writes in:

you said: yet Welshofer was acquitted of assault. Is it a lesser included offense with the involuntary manslaugher?

Typically Murder 2 is a lesser included offense of Murder 1; Manslaughter 1 an included offense of Murder 2; Man 2 (negligent) a lesser included offense of Man 1; and assault a lesser included offense of Man 2. So each lower charge is a lesser included offense of each higher one.

It's not uncommon for prosecutors to look at a single incident resulting in death and charge the full range of lesser included charges, just in case there is no conviction on the more serious charges. Sometimes this makes sense as when a case is highly speculative - i.e. there is a really serious bar fight, and the dazed/concussed guy staggers out into the street and gets hit by a car. Who really killed the man there - the guy in the car, the guy who punched him causing a concussion and dazing, or the dead guy himself? So is it depraved indifference murder, manslaughter, or just assault? The choice of charging with a whole range of lesswe included offenses is fraught, because the jury may come to view the defendant as somebody the prosecutor wrongly "threw the book at," or they may settle on a lesser included offense because the defendant is sympathetic or they were unable to reach a unanimous verdict on the more serious charges.

The Wash Post version of Chief Welshofer's story is that he took custody of the Iraqi general after the man had been very severely beaten and put into medical distress by Iraqi paramilitaries. That calls into question causation - did Welshofer cause the Iraqi's death? In such an instance, it was probably a good choice to include lesser charges, since a jury, the finder of fact, could have found that the Iraqi paramilitaries caused the man's death, and a reasonable person wouldn't have anticipated that Welshofer's application of force would have led to death, or that the general was dying anyhow, and Welshofer (1) lacked the requisite intent for a murder or manslaughter conviction; or (2) that it was mere assault and the death was unrelated to the assault. Obviously, the jury found causation along with an intent to assault (assault not intending to cause death, but leading to death, is *usually* manslaughter) but did not find an intent to commit murder, either via depraved indifference or specific intent to kill.

That clears some things up. I hadn't seen any reporting that suggested this Iraqi had already been severely beaten when he came to Welshofer. I believe it. The police in Ramadi in the summer of 2003 were enthusiastic fan belt floggers. Indeed, my battalion command, I believe, had one senior police officer sacked for his involvement in the torture by flogging of a couple of Iraqis. These weren't terrorists, as far as we know. They were just two guys who got into a dispute in a Ramadi restaurant. Our medics took photos of the marks left by the whipping, and our battalion commander was livid.

So it's entirely plausible to me that our Iraqi hosts had already beaten the crap out of this guy before he was turned over to the tender mercies of Chief Welshofer.

Here's the Washington Post:

According to court testimony and classified accounts of his treatment obtained by The Washington Post, Mowhoush was subjected to harsh beatings by a secret group of Iraqi paramilitaries, code-named Scorpions, who worked with the CIA. One witness who testified behind a curtain during Welshofer's trial was accidentally identified as having worked with the CIA, and witnesses also described how Mowhoush was beaten so badly by the Iraqi natives that he had a hard time breathing and could not walk on his own.

I understand the frustration of everyone in Western Iraq. I felt it myself. The number and lethality of IEDs, I recall, seemed to ramp up quite a bit around Ramadi beginning in the early autumn of 2003. I thought part of it was the loss of so many aviation assets when the 3rd ACR drew another sector further north. Armored Cavalry Regiments are great at flooding the zone with helicopters, and it's hard to emplace IEDs with so many birds buzzing around.

(It also coincided with the battle handover of Ramadi from the 3rd ACR to the 1st Brigade, First Infantry Division, but those guys were total pros, and on the whole, very respectful of Iraqis as far as I could see. I doubt that command would have been guilty of carelessly alienating the local sheikhs. I think that was a factor when the USMC rolled in in February of 04, but not so much in Sept 03)

At any rate, we were all wanting very much to find the reasons behind the increase in resistance, and so the pressure on intelligence pros was keen.

I am dismayed to learn that the CIA seems to have basically hired Iraqi paramilitary thugs to beat on our prisoners for us. If they are in Iraqi custody, that's one thing. But if someone's in US custody, I don't think him not dying is too much to ask. I hope the CIA is answering some tough questions. It's fine by me if that happens behind closed doors, but it needs to happen.

That Welshofer was spared a murder conviction -- and a potential life sentence -- indicates that the jury believed Welshofer did not try kill Mowhoush,

I agree. I can't imagine Chief Welshofer doing such a thing. He played hardball, but he's not a monster, and in my conversations with him I never had any impression that he wanted anything other than to win the war and do the right thing.

I should also add that the military intelligence unit, and the MP unit that ran the holding facility (the 94th MP Company out of the Massachussetts National Guard) lived just a stone's throw away from the regimental hospital. They would see our wounded on a near daily basis. They'd sit next to them in the chow hall. Mortuary Affairs wasn't too far away, either.

You live there for a year - with limited or no contact with good Iraqi civilians the whole time, and tell me your attitude doesn't get hardened.

Splash, out


UPDATE: The Washington Post has more here:


The initials were spoken aloud only once all week, and then apparently by mistake. After this past week's testimony, any role the CIA had _ or didn't have _ in the interrogation of an Iraqi general who died in U.S. custody remains a tantalizing and mysterious backdrop to the court-martial of Army Chief Warrant Officer Lewis Welshofer Jr.

The CIA is "the ghost at the banquet," said Eugene R. Fidell, an expert in military law who has been following the court-martial but doesn't know if the CIA was involved in the case.

"We're playing 'Hamlet' without Hamlet here," said Fidell, an attorney in private practice who teaches military law at American University in Washington. He also represented news organizations in their attempts to open pretrial hearings in Welshofer's prosecution.

Now, I didn't realize this until this morning. It seems to me like the CIA's closed ranks to protect their own, and set up an Army guy as the fall guy. This is pissing me off. Maybe Chief Welshofer's actions had a role in causing this guy's death, and maybe he didn't. I defer to the jury. But if we're going to be prosecuting an Army guy, I want to see a CIA agent prosecuted, too. Battery, or conspiracy seem to be slam-dunks.

Sauce for the goose.

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