SOME MEMOS WILL BE ALLOWED TO BE USED IN MARINE DEFENSE. HOW FAR UP THE CHAIN OF COMMAND THEY GO WILL BE OF INTEREST.
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Marine can use Justice memos
Officer is accused in death of Iraqi
By Alex Roth
UNION-TRIBUNE STAFF WRITER
August 18, 2004
CAMP PENDLETON – Lawyers for a Marine facing court-martial in the death of an Iraqi inmate won't be allowed to subpoena a former top Justice Department lawyer who wrote memos saying the Geneva Conventions don't apply to some prisoners of war, a judge ruled yesterday.
However, the judge said lawyers for Marine Maj. Clarke Paulus can use the memos to help in his defense.
Paulus' lawyers wanted to call former Assistant Attorney General Jay Bybee as a defense witness to show that Paulus wasn't derelict in his duties because the Geneva Conventions arguably didn't apply to the prisoners in Paulus' care.
The memos by Bybee – now a federal appeals court judge – were written in 2002, but caused enormous controversy when they became public earlier this year. In a January 2002 memo to the White House, Bybee, then head of the Justice Department's Office of Legal Counsel, argued that al-Qaeda and Taliban prisoners of war weren't entitled to the protections of the Geneva Conventions, which prohibit the torture of prisoners.
In an August 2002 memo to the White House, Bybee said torturing prisoners of war would be unlawful only if the abuse was "of an intensity akin to that which accompanies serious physical injury such as death or organ failure." The White House later disavowed the memo.
In his ruling yesterday, the judge said Paulus' lawyers can use some of Bybee's memos to cross-examine a prosecution expert witness who is expected to testify about the Geneva Conventions and the laws of war. Prosecutors hope to use the expert to show that Paulus didn't follow lawful procedure while overseeing Camp Whitehorse, a U.S. military jail outside the Iraqi town of Nasiriyah.
Paulus was the ranking officer in charge of the jail June 6, 2003, when inmate Nagem Sadoon Hatab, 52, a Baath party member, was found dead on the ground, his ribs broken. An autopsy concluded he died of a broken bone in his neck. Witnesses later testified Hatab was beaten by Marine guards at the jail.
One of those guards, Sgt. Gary Pittman, a reservist, faces court-martial starting Monday on charges of assaulting Hatab and other Iraqi prisoners at the Whitehorse jail. He faces up to three years in prison if convicted of all charges.
Paulus' court-martial is scheduled to begin next month. He is charged with ordering another guard to drag Hatab by the neck. He also is accused of allowing Hatab to lie naked on the ground for hours without proper medical treatment, among other charges. He faces up to five years in prison.
Lawyers for Pittman and Paulus contend that Hatab's autopsy was botched and that the prisoner likely died of natural causes, possibly asthma-related. They accuse military investigators and other military officials of bullying witnesses and either destroying or losing possibly exculpatory evidence, including some of Hatab's body parts.
The attempt to call a former high-ranking lawyer under Attorney General John Ashcroft as a defense witness is the latest twist in the case. In yesterday's pre-trial hearing, one of Paulus' lawyers argued that Bybee's testimony would help show that the Marines at Camp Whitehorse weren't necessarily bound by international prohibitions against torturing prisoners of war.
Defense lawyer Keith Higgins cited Bybee's memo, which made the argument that the Geneva Conventions don't apply to al-Qaeda or Taliban prisoners because they are "nonstate" actors. By extension, this reasoning should also apply to Hatab, Higgins said.
Higgins called Hatab "at best a nonstate militia member, at worst a terrorist."
Col. Robert Chester, the judge in the case, questioned whether an Iraqi prisoner could fall into the same category as an al-Qaeda or Taliban prisoner. Even under the reasoning in Bybee's memo, the judge said, military officials would need to hold a hearing before determining that a prisoner wasn't entitled to the protections of the Geneva Conventions.
Maj. Leon Francis, the lead prosecutor, argued that Bybee shouldn't be allowed to testify because his memos "deal with the Taliban and al-Qaeda" and that Hatab's case "is much different."
_____________________________________
Marine can use Justice memos
Officer is accused in death of Iraqi
By Alex Roth
UNION-TRIBUNE STAFF WRITER
August 18, 2004
CAMP PENDLETON – Lawyers for a Marine facing court-martial in the death of an Iraqi inmate won't be allowed to subpoena a former top Justice Department lawyer who wrote memos saying the Geneva Conventions don't apply to some prisoners of war, a judge ruled yesterday.
However, the judge said lawyers for Marine Maj. Clarke Paulus can use the memos to help in his defense.
Paulus' lawyers wanted to call former Assistant Attorney General Jay Bybee as a defense witness to show that Paulus wasn't derelict in his duties because the Geneva Conventions arguably didn't apply to the prisoners in Paulus' care.
The memos by Bybee – now a federal appeals court judge – were written in 2002, but caused enormous controversy when they became public earlier this year. In a January 2002 memo to the White House, Bybee, then head of the Justice Department's Office of Legal Counsel, argued that al-Qaeda and Taliban prisoners of war weren't entitled to the protections of the Geneva Conventions, which prohibit the torture of prisoners.
In an August 2002 memo to the White House, Bybee said torturing prisoners of war would be unlawful only if the abuse was "of an intensity akin to that which accompanies serious physical injury such as death or organ failure." The White House later disavowed the memo.
In his ruling yesterday, the judge said Paulus' lawyers can use some of Bybee's memos to cross-examine a prosecution expert witness who is expected to testify about the Geneva Conventions and the laws of war. Prosecutors hope to use the expert to show that Paulus didn't follow lawful procedure while overseeing Camp Whitehorse, a U.S. military jail outside the Iraqi town of Nasiriyah.
Paulus was the ranking officer in charge of the jail June 6, 2003, when inmate Nagem Sadoon Hatab, 52, a Baath party member, was found dead on the ground, his ribs broken. An autopsy concluded he died of a broken bone in his neck. Witnesses later testified Hatab was beaten by Marine guards at the jail.
One of those guards, Sgt. Gary Pittman, a reservist, faces court-martial starting Monday on charges of assaulting Hatab and other Iraqi prisoners at the Whitehorse jail. He faces up to three years in prison if convicted of all charges.
Paulus' court-martial is scheduled to begin next month. He is charged with ordering another guard to drag Hatab by the neck. He also is accused of allowing Hatab to lie naked on the ground for hours without proper medical treatment, among other charges. He faces up to five years in prison.
Lawyers for Pittman and Paulus contend that Hatab's autopsy was botched and that the prisoner likely died of natural causes, possibly asthma-related. They accuse military investigators and other military officials of bullying witnesses and either destroying or losing possibly exculpatory evidence, including some of Hatab's body parts.
The attempt to call a former high-ranking lawyer under Attorney General John Ashcroft as a defense witness is the latest twist in the case. In yesterday's pre-trial hearing, one of Paulus' lawyers argued that Bybee's testimony would help show that the Marines at Camp Whitehorse weren't necessarily bound by international prohibitions against torturing prisoners of war.
Defense lawyer Keith Higgins cited Bybee's memo, which made the argument that the Geneva Conventions don't apply to al-Qaeda or Taliban prisoners because they are "nonstate" actors. By extension, this reasoning should also apply to Hatab, Higgins said.
Higgins called Hatab "at best a nonstate militia member, at worst a terrorist."
Col. Robert Chester, the judge in the case, questioned whether an Iraqi prisoner could fall into the same category as an al-Qaeda or Taliban prisoner. Even under the reasoning in Bybee's memo, the judge said, military officials would need to hold a hearing before determining that a prisoner wasn't entitled to the protections of the Geneva Conventions.
Maj. Leon Francis, the lead prosecutor, argued that Bybee shouldn't be allowed to testify because his memos "deal with the Taliban and al-Qaeda" and that Hatab's case "is much different."