Diary

Marc Kusnetz

On 10 November 2003 an Iraqi major-general called Abed Hamed Mowhoush presented himself at the gate of Forward Operating Base Tiger, a small US facility in the western province of al Anbar, near the Syrian border. He was there to find his four sons – the youngest was 15, the others in their twenties – detained about a week earlier in a pre-dawn raid at their home, an event that had involved a tank, explosions, shouting, confusion and fear. General Mowhoush was not at home at the time.

Immediately after the raid, the general had paid a visit to the 82nd Airborne Division headquarters in the provincial capital to find out what had happened to his sons. Whatever transpired there, he walked out a free man. Two of his sons, with whom I have been in contact since last summer, insist that their father was told in the course of the visit that he could travel to FOB Tiger to collect his children.

But when he got there he was taken into custody and interrogated. Over the following 16 days he was beaten repeatedly by various uniformed and non-military personnel. He was slapped, punched, kicked, and beaten with sticks and hard rubber tubing. On the morning of 26 November, General Mowhoush was stuffed head-first into a sleeping bag, which was then bound with inch-thick electrical cord. The soldier who had overseen Mowhoush’s interrogations, Chief Warrant Officer Lewis Welshofer, sat on his prisoner’s chest while asking questions about his role in the burgeoning insurgency.

Welshofer, by his own admission, clamped his hand several times over his captive’s mouth through the sleeping bag, in order to prevent him from invoking the name of Allah. Between twenty and thirty minutes into the interrogation, the general became unresponsive, prompting Welshofer to peel back the sleeping bag. The general, Welshofer said, had a half-smile on his face. He thought Mowhoush was ‘messing’ with him, and he poured water on his face. Mowhoush remained unresponsive. Welshofer, by now realising that something had gone wrong, called for medical assistance, and began applying chest compressions, in vain. General Mowhoush was dead.

The court martial began on 16 January, two years and three months after Mowhoush’s death. It was held at Fort Carson, Colorado, the home base of the 3rd Armored Cavalry Regiment, to which Welshofer was attached. Welshofer was charged with assault, wilful dereliction of duty and murder; if found guilty, he faced the possibility of life in prison without parole, as well as a dishonourable discharge from the military. In the six days that followed, the defence tried on two occasions to have the judge throw out the case; another motion, had it been successful, would have prevented the trial from proceeding. The prosecution argued that the cause of death was asphyxia, while the defence argued it was heart failure brought on by extreme stress and ill-health: the general’s heart was almost twice normal size, he weighed at least 250 pounds, and suffered from several ailments.

The legal battle involved a great deal more than a medical argument over the cause of death. Was Welshofer a ‘cowboy’ or was he merely following orders? What were the orders, and what were the rules for interrogators in the field? Were they clear and consistent or confusing and contradictory? Did the chain of command, stretching from the upper reaches of the Pentagon (and even higher), fulfil its responsibilities to the American soldiers operating in a war zone? As these issues were debated in the courtroom – sometimes with military understatement, sometimes with rhetorical flourishes – the case of General Mowhoush and the trial of Chief Warrant Officer Welshofer came to seem emblematic of the larger argument about detainee treatment that has been raging in America ever since the invasion of Afghanistan.

At 11 p.m. on Saturday 21 January, after six hours of deliberation, the six-officer jury, consisting of four men and two women, returned its verdict: Welshofer was not guilty of murder, he was guilty of negligent homicide; he was not guilty of wilful dereliction of duty, he was guilty of negligent dereliction of duty; he was not guilty of assault at all.

With that, Welshofer no longer faced the possibility of life in prison: he faced a maximum of 39 months in jail. Two nights later, his already vastly improved prospects again improved vastly. The jury decided Welshofer’s sentence, as is the rule in military trials: a letter of reprimand would be placed in his file; he was confined for 60 days to his home, his office or his place of worship; $1500 would be deducted from each of his monthly paycheques for a period of four months. He would not go to jail.

There is no doubt that US military intelligence was very interested in General Mowhoush: for them, he had a history and he had a reputation. He has been variously described, by the military and in the press, as an air defence commander in the Baathist-dominated Iraqi armed forces, an intimate of Saddam Hussein, a Republican Guard officer with execution authority, and a man who – long before the invasion – had conducted brutal military operations in the Shia-dominated south. Later, American military authorities determined that he was a key player in the Sunni-led insurgency. As testimony at Welshofer’s court martial made clear, he was thought to be helping to fund the insurgency, and perhaps even leading it in al Anbar province, where US troops were sustaining heavy casualties.

It seems inevitable that Welshofer and the other interrogators at FOB Tiger would have been excited to have the general hand himself over to them. But a series of larger questions not dealt with at the court martial, at earlier pre-trial proceedings, or even in the few press accounts of the Mowhoush case remain unanswered: why, when he first arrived at the 82nd Airborne Division headquarters, did US authorities let the general go? Did they know Mowhoush was a wanted man but somehow fail to make the connection to the man before them? Or did they not know? If so, why did they not know while those at Tiger Base did? Is there still some hidden explanation?

Mowhoush’s sons have added some pertinent details to this aspect of the story, but their comments only deepen the mystery. Their knowledge of the events leading up to their father’s detention is, of course, second-hand: all four brothers were already in custody, and remained so for months after their father’s death. They told me and a colleague at Human Rights First that, following their release, they tried to reconstruct the story by questioning their mother and various others, including Iraqi detainees who had seen some of the things that happened to General Mowhoush in custody. Husam, the eldest son, also told us that the US authorities, despite frequent requests from the brothers, refused to provide any information about any aspect of their father’s case.

The sons say that, after meeting with the US authorities at the 82nd Airborne Division headquarters, Mowhoush returned home. He showed his wife a green card he had been given: a document, he claimed, that gave him permission to retrieve his detained children from Tiger FOB. (Later, when Mowhoush’s body was released, there was no green card among his effects.) The sons say that their mother was frightened and unconvinced, and begged her husband not to go. But Mowhoush, Husam told me, was determined to proceed.

On the question of General Mowhoush’s activities both before and after the invasion, Husam and his brother could shed little light. According to a report in the Washington Post, Saddam had been to Mowhoush’s house; the sons professed no knowledge of any such visit. They knew nothing of any ‘execution authority’. They told Human Rights First that their father had at one time been an air defence commander, and at another time had had Republican Guard responsibilities. He was, Husam asserted, ‘a general like any other general’ (the Iraqi army had an estimated 10,000 officers with the rank of general), and he performed the duties assigned to him.

The brothers assume that they were bait to lure their father: a tactic expressly prohibited by international law. During their interrogations they were repeatedly asked about their father’s whereabouts – and frequently accused of being insurgents or common criminals. But they were never charged with any crime. Soon after the Iraq war began, the Department of Defense stated that the Geneva Conventions, which apply to both military and civilian prisoners, would govern the treatment of prisoners. Why in that case were the four Mowhoush brothers treated in the way they were? What about their father? As a former uniformed ranking officer he qualified for prisoner of war status under Geneva rules that forbid physical abuse. Even if there had been confusion about Mowhoush’s military status, he was still entitled to the protection afforded to civilians under other provisions of the Geneva Conventions. So what happened? Did the Bush administration’s notion of the ‘unlawful combatant’ introduce confusion in the way prisoners should be treated?

The trial took the first of its Rasho¯ m0n-like twists the day it began. Basing his argument on a military principle known as ‘unlawful command influence’, the defence attorney, Frank Spinner, asked the judge to dismiss the case. With no jurors present, Spinner introduced a witness who testified that he had overheard a conversation on the base which suggested unlawful command influence on the part of Fort Carson’s commanding officer, Major-General Robert Mixon. The witness said he had overheard one colonel tell another that General Mixon was unhappy with the lenient outcomes of some recent courts martial, and that jurors who were ‘bleeding heart liberals’ had contributed to the problem. The colonel, according to the witness, went on to say that he knew which officers were in the jury pool for Welshofer’s trial, adding that Mixon would be pleased because these jurors ‘would do the right thing’.

The prosecutor, Major Tiernan Dolan, called the colonel in question to the stand. The colonel testified that he had indeed taken part in a conversation about courts martial, but that whoever had overheard it had entirely misunderstood. The colonel said he had been referring to another court martial, recently completed, not to the upcoming Welshofer trial. To add to the confusion, several subsequent witnesses gave testimony that supported one or the other of the two versions of the overheard conversation. After a lengthy recess, the judge, Colonel Mark Toole, ruled that the trial would proceed, but it seemed to me that the day-long argument had inadvertently highlighted the related and pertinent issue of command influence over troops in the field.

The next day, Captain Elena Matt, one of the prosecutors, began her opening statement with some stirring rhetoric. ‘This case is about an American soldier,’ she said. ‘When you think about such a person,’ she continued, ‘you think of standards, of the moral high ground.’ But, she added, Lewis Welshofer had unfortunately abandoned those standards and relinquished the moral high ground. Matt then described in detail the last days of General Mowhoush’s life: according to an eye-witness who would later testify, he had become unresponsive inside the sleeping bag not once, but twice. The first time, after a tense pause, he had gasped loudly, as if he had been holding his breath underwater; Welshofer, on hearing the gasp, had said: ‘Thank God, I thought he died.’ He had then flipped the general from his back onto his stomach and immediately resumed the interrogation, which continued until the second pause, and death.

The prosecutor also described the events of the day before Mowhoush died, when Welshofer had repeatedly struck his elbows with a stick. (Photos taken by an army investigator and displayed in court showed that the prisoner’s arms were purple from the wrists to the biceps. The photos also showed deep purple contusions all over Mowhoush’s body, at least 47 of them, according to the autopsy report. They ranged from an inch or two in length, up to 13 inches.) Later that day, Welshofer employed what he would later call the ‘love of family technique’ to make Mowhoush more co-operative: he reunited the general with his youngest and favourite son, Muhammad, who had been brought from another detention facility. Welshofer testified that he had warned the general not to discuss his guilt or innocence with his son. But, Welshofer said, he overheard him doing just that, and terminated the reunion after five minutes.

Given that he had seen his father’s condition for himself less than 24 hours before Mowhoush died, I wondered why neither the prosecution nor the defence had called Muhammad as a witness. Had they decided that it was too risky, that there was no knowing what he might say? If that was the case, why didn’t either or both of them at least interview Muhammad before the trial? I put this to a Human Rights First attorney, who gave what seemed like a good explanation: any such interview could have been subject to discovery, meaning that Muhammad’s comments might have to be revealed. But then he said something that hadn’t occurred to me: leaving aside the lawyers, why hadn’t any criminal investigator talked to Muhammad? All four brothers – arrested and detained, presumably, because of their connection to their father – had been considered completely irrelevant to the investigation into his death.

The events of one other day, 24 November 2003, were central both to the Welshofer court martial and to the more general issue of alleged abuse and torture in Iraq. During that day’s interrogation, Welshofer had summoned eight to ten people who all subjected Mowhoush to beatings. Testimony from prosecution and defence witnesses stated, without contradiction, that these people were ‘non-US army’, meaning that they were CIA, Special Forces or US-trained Iraqi paramilitaries, or some combination of the three. This didn’t come as a surprise to anyone familiar with the case. The intriguing question for those of us who were following the trial was the extent to which the role of these operatives would be explored. It was at least being addressed in open court, and there was a chance that it would affect the balance between the Bush administration’s desire for secrecy and the efforts of the press to penetrate it. Reporters and human rights activists weren’t the only ones who were interested in this development: seated among us was a young woman who had already been seen at the pre-trial proceedings. She didn’t chat with anybody, didn’t identify herself, and was widely assumed by reporters to be from the CIA. I approached her one afternoon and casually asked where she was from. She paused, then said ‘uh’ and paused again. Then: ‘I’m not from here.’ Another pause, then, with a shrug and a half-smile: ‘I’m just an observer.’

Unsurprisingly, Spinner, the defence attorney, sought at every opportunity to suggest that other people might have been involved in General Mowhoush’s death. Why was Welshofer alone being asked to take the rap? Why claim that the sleeping bag, the electrical cord and that last interrogation told the whole story, or even an accurate story? Why weren’t previous interrogations, humiliations and beatings – and the accompanying stress on an unhealthy man’s enlarged heart – equally or even more to blame? Spinner made quite sure that the jury dwelled on the fact that Welshofer alone had wound up facing a murder charge. Originally, three other soldiers under his command had also been charged with murder. Each of them was promised immunity by the prosecution if they testified. All three testified against Welshofer.

What about officers who outranked Welshofer? His immediate superior, Major Jessica Voss, had given Welshofer permission to use the sleeping bag technique (although she said that she would never have done so had she known about the electrical cord, the weight placed on Mowhoush’s chest, the covering of his mouth, and all the rest of it). Major Voss, too, was given immunity in return for testifying against Welshofer. And the next link up the chain of command? That was Colonel David Teeples, who at the time commanded the entire 3rd Armored Cavalry Regiment. Teeples, who is now executive assistant to the chairman of the Joint Chiefs of Staff, also made an immunity deal and testified as a prosecution witness.

Spinner turned from people to documents, the first of which was a memo distributed to interrogators in August 2003. ‘The gloves are coming off, gentlemen,’ it said, adding that American soldiers were dying and something had to be done. The memo, written more than five months after the invasion, also said that rules of engagement for interrogators had not yet been formulated. In what seemed like an exception to the military’s rule that guidance always flowed from above, the memo invited interrogators to submit requests for techniques they would like to use – it actually referred to ‘a wish list’.

Another memo, dated 10 September 2003, was signed by General Ricardo Sanchez, then the commander of ground forces in Iraq. It offered some guidance on which interrogation techniques were permissible while also indicating that in some areas it wasn’t clear what was, and what was not, allowed. Welshofer claimed this memo entitled him to use the techniques he subsequently employed. There were at least two later memos from Sanchez, one of them written just four days later, the other a month after that. Welshofer testified that he had never received these last two documents, and didn’t see them until after he’d left Iraq.

At one point, while questioning a witness about the unclear guidance given to interrogators, Spinner raised the possibility of confusion within the administration. The prosecution objected, claiming irrelevance, and the judge immediately sustained the objection. Spinner insisted that it was indeed relevant, and that he was asking an expert witness to offer his opinion on problems that might arise from these memos. ‘What is the relevance of disputes within the administration?’ Judge Toole asked. ‘I have documents that reveal arguments within the administration about what is and isn’t lawful!’ Spinner exclaimed.

On the one hand there was the specific question of Welshofer’s guilt or innocence. On the other, a broader question: did confusion, disagreement and mixed messages stretch from the Pentagon all the way down the chain of command to the interrogation room where Mowhoush died? Judge Toole ordered the jury out of the room, in order to sort out how to proceed. Dolan repeated his claim that disputes within the administration were irrelevant. Toole, generally soft-spoken, said with considerable intensity: ‘Lawyers disagree all the time. It’s happening right now.’ Spinner, matching the judge’s intensity, replied: ‘I can’t imagine anything more relevant.’ He paused, agitated, then looked at the judge and said: ‘It sounds to me like you’re trying to protect this administration.’ Toole, staring back at Spinner, returned to his customary mild tone and answered: ‘I appreciate the zealousness of your advocacy, but I’m just trying to do what’s fair.’ Spinner, his own voice returning to a softer register, said: ‘This is a very focused cross-examination, not a broadside levelled at the administration.’

During a recess, I sought out retired Brigadier-General David Irvine, who taught military interrogation techniques in the army for 18 years – he too was observing the trial. ‘The administration,’ Irvine said, ‘didn’t want to hear from anyone who disagreed with this testosterone-fuelled vision of what they wanted to do. They cut out of those working groups anyone who had an opposing view. So memos were squelched, because the administration didn’t want anyone to know.’

Eventually, Welshofer himself took the stand and told us several things we didn’t already know. He described conducting an interrogation of Mowhoush on 17 November, when he had employed ‘pride and ego down’, military argot for a technique intended to cause a loss of self-respect in the detainee; in this case, to bring a high-ranking officer ‘down a peg or two’, as Welshofer put it. In front of several hundred Iraqi detainees, Welshofer testified, he had forced Mowhoush to his knees and slapped him. Mowhoush had then bowed his head, as did the other detainees looking on: because, Welshofer asserted, they knew Mowhoush was an important man and they could see that Welshofer was in control. ‘Was it to hurt him?’ the defendant was asked. ‘No,’ Welshofer, answered, ‘no pain. Only for control.’

Welshofer’s future is not yet settled. Major-General Mixon must, first of all, review the verdict and sentence. He has three options: to uphold the jury’s verdict, to reduce further the sentence imposed by the jury, or to throw out the convictions altogether. Increasing the sentence is not an option. His ruling, according to a Fort Carson public affairs officer, is expected within a few months. It is unclear when, if ever, there will be answers to the larger questions raised by the case of General Mowhoush – questions about detainee treatment, accountability for misconduct, and command responsibility.