Abu Ghraib's message for the rank and file

The trial that was supposed to close the book on a year of shame and condemnation of US military operations at Abu Ghraib didn't follow the script. And now the infamous photographic icon, Pfc. Lynndie England, is likely to be the focus of new military legal machinations for weeks, if not months.

But what the latest case did accomplish, even though it ended abruptly in a mistrial, was to refocus attention on who is facing courts-martial and who isn't. So far, six lower-level enlisted men and women have been punished by the military for inflicting humiliation and torture on Iraqi prisoners at Abu Ghraib prison. Ms. England's fate remains unknown at the moment. Another solider is scheduled to go on trial soon.

Although some 10 Pentagon investigations have highlighted "systemic" problems in the Iraqi operation, they found that higher-level officials issued no policies nor orders that could have led to the prisoner abuses that were aired around the world in a series of graphic photos. Only two senior officers with direct command responsibility for Abu Ghraib - Brig. Gen. Janis Karpinski and Col. Thomas Pappas - have been reprimanded, but not prosecuted, for their oversight of the facility.

If any lesson can be drawn from the Abu Ghraib prisoner abuse legal fallout so far, it may be this: The lowest-level soldier has the highest level of responsibility. The rank and file must clearly know right from wrong - both in terms of their own actions and orders from superiors.

"What the average soldier is going to take away from Abu Ghraib is a reinforcement of what he learned at boot camp - that he's responsible for his actions," says Mary Hall, a former military judge now in private practice. "These Abu Ghraib courts-martial are a blunt reminder to even the newest private that they have a duty to just say 'no.' "

The judge presiding over England's sentencing hearing declared a mistrial Wednesday afternoon after Pvt. Charles Graner, a former guard at Abu Ghraib who was previously convicted on charges related to the abuses, testified. In referring to the photo of England with an Iraqi prisoner tethered with a leash, Mr. Graner said England was asked to perform a legitimate function that he planned to use in future training.

That didn't fit with what England had said earlier in the hearing - that she knew what she was doing was wrong and that it had been done for the US soldiers' amusement. The judge said he therefore could not proceed with one of the charges - conspiracy - and declared a mistrial. But that doesn't mean either that the case is dropped or that it is likely to be retried. It just means that the defense and prosecution will most likely renegotiate a new plea deal.

"The charges are not dismissed," says Eugene Fidell, a Washington lawyer and president of the National Institute for Military Justice. "They simply have to impanel a new jury, and the process will crank up again."

But to others, Graner's testimony, along with other aspects of the case, raise more questions about higher chain-of-command responsibility in the case.

England had testified earlier in the trial that she posed for the photos in humiliating or brutal ways with the Iraqi prisoners because her superior told her to do so. After the judge admonished the defense lawyers, and they left with England for lunch, she returned with a changed story - that she knew what she did was wrong.

Moreover, a former high school psychologist who worked with England said that because of her physical disabilities, he wasn't sure she could in all cases distinguish right from wrong or refrain from peer pressure. The judge took issue with that testimony as well.

That may not provide new grounds for military courts-martials of superiors. But it may provide more grist for the Senate Armed Services Committee, which has held hearings and plans to hold more looking at the Pentagon's investigations into the abuses. It may also further embolden the American Civil Liberties Union (ACLU), which has doggedly pursued the release of government documents relating to the abuses and has tried to hold higher-level officials responsible for creating the atmosphere in which they took place.

According to one retired Army general, there are clear-cut rules for accountability in the military.

"The lowest level would be the military guards and intelligence officers in this case. They are held accountable for their personal actions," says the retired general, who asks that his name not be used because he still works for the Pentagon.

"The second level is supervisory - those people can be held responsible for not only things they've done, but for things they've failed to do.

"The third level is ... the ones who might create an environment that encourages, permits, or tolerates these kinds of activities," he says.

So far, of course, only those on the lowest level have been charged. But it is clear other groups - including the Senate Armed Services Committee and the ACLU - have more questions about the environment created by higher-ups in Iraq. The Senate panel is planning at least one more round of hearings to study the Pentagon's internal investigations.

"We're continuing to press very aggressively on getting disclosure of documents under the Freedom of Information Act, and we are pursuing four civil lawsuits," says Lucas Guttentag, lead counsel in the lawsuits and director of the Immigrants' Rights Project at the ACLU.

The ACLU filed four separate civil suits earlier this year, charging that four high-level officials should be held accountable for the abuses. Those include secretary of Defense Donald Rumsfeld; Lt. Gen. Ricardo Sanchez, who at the time of the Abu Ghraib scandal oversaw US military operations in Iraq; Brig. Gen. Janis Karpinski, who had direct responsibility for the military police at Abu Ghraib; and Col. Thomas Pappas, who oversaw military interrogations at Abu Ghraib. All four cases await pretrial hearings.

Meanwhile, the Army is rewriting its interrogations manual. The new rules of conduct are expected to ban the types of procedures that were used - and photographed - at Abu Ghraib. But many experts note that those practices were not permitted in the previous manual. In fact, during a congressional hearing last week, Sen. John McCain (R) of Arizona sparred with Stephen Cambone, undersecretary of Defense for intelligence, over the new manual.

"So we didn't do anything wrong, but we won't do it again," McCain said.