Years After 2 Afghans Died, Abuse Case Falters

Keith Bedford for The New York Times

In Yakubi, Afghanistan, Asaldin and Shahpoor, the father and a brother of a taxi driver who died in American custody at Bagram, mourned last year. "God will punish" the abusers, Shahpoor said.

By TIM GOLDEN
Published: February 13, 2006
FORT BLISS, Tex. — In the chronicle of abuses that has emerged from America's fight against terror, there may be no story more jarring than that of the two young men killed at a United States military detention center in Afghanistan in December 2002.

The Army last month abandoned its case against Capt. Christopher M. Beiring, the former military police commander at Bagram. The case would have been a "loser for the government," an Army judge wrote.

The two Afghans were found dead within days of each other, hanging by their shackled wrists in isolation cells at the prison in Bagram, north of Kabul. An Army investigation showed they were treated harshly by interrogators, deprived of sleep for days, and struck so often in the legs by guards that a coroner compared the injuries to being run over by a bus.

But more than a year after the Army began a major push to prosecute those responsible for the abuse of the two men and several other prisoners at Bagram, that effort has faltered badly.

Of 27 soldiers and officers against whom Army investigators had recommended criminal charges, 15 have been prosecuted. Five of those have pleaded guilty to assault and other crimes; the stiffest punishment any of them have received has been five months in a military prison. Only one soldier has been convicted at trial; he was not imprisoned at all.

While military lawyers said the pleas were negotiated in exchange for information or testimony against other soldiers, the prosecution has gained no evident momentum. Four former guards accused of assaulting detainees were all acquitted in recent courts-martial. Charges against a fifth former guard were dropped.

In one of the prosecutors' most important tests, the Army last month abandoned its case against Capt. Christopher M. Beiring, the former military police commander at Bagram and one of the few American officers since 9/11 to face criminal charges related to the abuse of detainees by the officers' subordinates.

"If this case were to go to trial, it would be a big, ugly loser for the government," Lt. Col. Thomas S. Berg, the Army judge who oversaw Captain Beiring's pretrial inquiry, wrote in a report on the evidence.

In recommending dismissal of the case, Colonel Berg argued that the prosecutors had overreached, charging Captain Beiring with command failures that they could not prove. The judge also highlighted a problem that has frustrated the prosecutors in their effort to hold soldiers accountable for breaking the rules at Bagram: those rules were not at all clear.
Indeed, more directly than any other episode since 9/11, the Bagram cases have exposed the uncertainty and confusion among military interrogators and guards about how they were required to treat terror suspects after President Bush decided in February 2002 that they would not be protected by the Geneva Conventions.

Although the administration issued a general order that detainees should be treated humanely, internal military files on the case show that officers and soldiers at Bagram differed over what specific guidelines, if any, applied. That ambiguity confounded the Army's criminal investigators for months and left the prosecutors vacillating over strategy. It also gave the accused soldiers a defense that has seemed to resonate with some military judges and jurors.

"The president of the United States doesn't know what the rules are!" said Capt. Joseph Owens, a lawyer for one of the accused interrogators, Pfc. Damien M. Corsetti, who is one of two former Bagram soldiers still facing court-martial. "The secretary of defense doesn't know what the rules are. But the government expects this Pfc. to know what the rules are?"

The prosecutors have stumbled over a series of other obstacles as well, some of them plainly visible. After a criminal inquiry that took almost two years, witnesses in the case were scattered, their memories dimmed. A crucial witness in three of the trials changed his story repeatedly, leading to acquittals in each case. Other potentially important figures who had left the military were largely ignored.

In the modest Fort Bliss courtrooms where the trials have been held, the two Afghan victims have rarely been evoked, except in autopsy photographs. But much testimony focused on hardships faced by the soldiers themselves: the poor training they received, the tough conditions in which they operated, the vague rules with which they had to contend. As in other recent abuse cases, Army judges and jurors also seemed to consider the soldiers' guilt or innocence with an acute sense of the sacrifices they had made in serving overseas.
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