Sex, Violence, and Military Justice

By JOANNE MARINER
Wednesday, Mar. 01, 2006

Military justice was in the spotlight twice last week: first for violence, then for sex. It was a discomfiting juxtaposition, given that the soldiers who engaged in sex were facing severe punishments, while those responsible for violence were largely not.

On Wednesday, Human Rights First released a damning new report on the government's failure to hold to account military and civilian officials responsible for the deaths of detainees in U.S. custody. It examined the cases of detainees like Abed Hamed Mowhoush, a former Iraqi general who was stuffed into a sleeping bag, wrapped with electrical cord, and suffocated to death.

In a typical outcome, a low-level officer responsible for Mowhoush's abuse received a written reprimand, a fine, and 60 days of restrictions on his movements. The sentence might seem shocking in its leniency but it was also, in the context of detainee abuse, unusual in having been imposed at all. To date, none of the other soldiers implicated in Mowhoush's killing have even been brought before a court-martial.

But when the military wants to prosecute a case - when it feels its core values have been offended -- it knows how to do it. Two days after the Human Rights First report was issued, the army announced that it was charging three soldiers under the Uniform Code of Military Justice for engaging in sex acts in a video shown on a Web site. The soldiers face courts-martial for sodomy, pandering and engaging in sex acts for money.

The contrast is clear and, unfortunately, the sentencing outcomes are predictable. The military apparently sees acts of consensual gay sex as more horrifying - and more of a blot on its image -- than sickening and unjustified acts of violence.

Deaths by Torture

The Human Rights First report is a litany of horrors. It describes how Iraqi Lieutenant Colonel Abdul Jameel was tied by his hands to the top of his cell door, and then gagged, so that he asphyxiated and died. (Besides a fractured and bleeding throat, an autopsy of Jameel's body showed more than a dozen fractured ribs, internal bleeding, and numerous lacerations and contusions.)

It tells how Fashad Mohammed, an Iraqi civilian, was hooded, sleep-deprived, and subjected to extremes of hot and cold while in U.S. custody. Roughly seventy-two hours after he was initially detained, he was dead. An autopsy, which was carried out until three weeks after Mohammed's death, found multiple minor injuries, abrasions and contusions and blunt force trauma and positional asphyxia. Nonetheless, it found both the cause of death and manner of death to be undetermined.

One of the more gruesome cases described in the report is that of Manadel al-Jamadi, an Iraqi detainee who was tortured to death in November 2003. The Navy SEALS and CIA personnel who captured him took turns punching, kicking, and striking him with their rifles. They later stripped him, doused him with water, and threatened him. Finally, during interrogation, a CIA agent ordered him shackled to a window in an uncomfortable posture known as "Palestinian hanging." In less than an hour he was dead. According to one of the guards who was present when al-Jamadi's body was unshackled, blood gushed from al-Jamadi's mouth and his arms nearly came out of their sockets.

Giving names, photos, and excruciating details, the report documents abuses that occurred both in Iraq and Afghanistan. In all, the report covers the cases of nearly 100 detainees who have died in U.S. custody since 2002.

Its descriptions of torture and homicide are shocking, but perhaps even more appalling are the report's findings regarding the lack of accountability for such crimes. It states that of the 34 homicide cases identified as such by the military, investigators have recommended criminal charges in fewer than two-thirds, and charges have actually been brought in fewer than half.

Nonjudicial punishments - written reprimands, reductions in rank, and the like - have been an all too common response to these crimes. Indeed, the Human Rights First report points out that the steepest sentence meted out for a torture-related death has been five months in jail. As the report concludes, "accountability for wrongdoing has been limited at best, and almost non-existent for command."

Punishment for Sodomy

Yet while extreme violence is apparently tolerable, at least judging by these lenient sentences, gay sex is not. The three soldiers who were charged by army prosecutors face five years of imprisonment for sodomy, as well as dishonorable discharges and forfeiture of pay.

It's a topsy-turvy world when consensual sodomy is deemed a worse crime than homicide by torture. It will take a dramatic change in military priorities to put things right.


Joanne Mariner is a human rights attorney. Her previous columns on detainees can be found in FindLaw's archive of her columns.

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