United States v. Graner

UNITED STATES, Appellee

v.

Charles A. Graner Jr., Specialist
U.S. Army, Appellant

No. 09-0432
Crim. App. No. 20050054

United States Court of Appeals for the Armed Forces

Argued May 3, 2010

Decided June 25, 2010

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., filed a separate opinion
concurring in part and in the result. BAKER, J., filed a
separate opinion concurring in part and dissenting in part.

Counsel

For Appellant: Charles W. Gittins, Esq. (argued); Captain
Michael E. Korte (on brief).

For Appellee: Captain Chad M. Fisher (argued); Colonel Norman
F. J. Allen III, Lieutenant Colonel Martha L. Foss, and Major
Sara M. Root (on brief); Captain Philip M. Staten.

Military Judge: James L. Pohl

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Graner, No. 09-0432/AR

Judge STUCKY delivered the opinion of the Court.

We granted review in this Abu Ghraib case to determine

whether the military judge abused his discretion in (1) refusing

to compel the Government to produce certain memoranda requested

by the defense; (2) excluding the testimony of, and an e-mail

from, Major Ponce; and (3) limiting the testimony of a defense

expert witness. We hold that the military judge did not abuse

his discretion in any of these decisions and affirm the judgment

of the United States Army Court of Criminal Appeals (CCA).1

I.

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of two

specifications of conspiring to commit maltreatment, one

specification of dereliction of duty for failing to protect

detainees under his charge from abuse, four specifications of

maltreating detainees, assault with a means likely to produce

death or grievous bodily harm, assault consummated by battery,

and committing an indecent act, in violation of Articles 81, 92,

1
Appellant and the Government have also submitted three
outstanding motions related to this case. “The Court will
normally not consider any facts outside of the record
established at the trial and the Court of Criminal Appeals.”
C.A.A.F. R. 30A(a). While we may remand for further factfinding
if an issue concerning an unresolved fact affects the Court’s
resolution of the case, C.A.A.F. R. 30A(c), none of the
documents that either party seeks to submit into the record are
necessary to resolve the issues of this case. As such, all
three motions are denied.

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93, 128, and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 881, 892, 893, 928, 934 (2000). The panel sentenced

Appellant to a dishonorable discharge, confinement for ten

years, reduction to E-1, and forfeiture of all pay and

allowances. The convening authority approved the findings and

sentence. The CCA summarily affirmed. United States v. Graner,

No. 20050054 (A. Ct. Crim. App. Feb. 9, 2009).

II.

On November 7, 2003, Appellant exploited his position as a

military policeman at Abu Ghraib, an American-operated detainee

facility in Iraq, in order to abuse and demean Iraqi detainees.

Appellant’s actions that day included: ripping the pants off a

detainee and having Specialist Sabrina Harman write “I’m a

rapeist [sic]” on the detainee’s leg, then punching the detainee

in the temple so hard that the detainee was knocked unconscious;

posing in a picture with a detainee where Appellant held the

detainee’s head in his hands while Appellant’s other hand was

cocked in a fist near the detainee’s head, even though

photography was prohibited at that section of the facility;

helping to force the unwilling detainees into a naked human

pyramid and then posing for a picture with the pyramid of naked

Iraqi detainees; taking a picture of a detainee being forced to

masturbate while Private First Class (PFC) Lynndie England

smiled, pointed at the detainee’s genitals, and gave a “thumbs-

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up” sign; placing a detainee in a position so that the

detainee’s face was directly in front of the genitals of another

detainee to simulate fellatio, and then photographing them; and

wrapping a tether around a detainee’s neck, handing the tether

to PFC England, and then taking a picture of PFC England and the

tethered detainee.

The defense theory of the case was that Appellant was

complying with a general command climate of humiliating

detainees in the belief that humiliation would make them more

likely to reveal information of intelligence value, and that

individual military policemen had wide discretion in

implementing this agenda. Several defense witnesses testified

that the detainees were routinely naked, that their sleep was

regulated and disturbed, that their food was limited, and that

their hands were sometimes handcuffed to cell doors. Defense

witnesses also testified that they had received vague orders to

soften up detainees, that intelligence personnel did not care

what was done to detainees, and that intelligence personnel

supported more aggressive use of force on detainees.

III.

A.

On June 12, 2004, the defense requested that the Government

provide

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a copy of the Department of Defense report detailing
the legal obligations of the United States government
to refrain from using torture as an interrogation
technique and the legal liabilities of government
agents who do use such methods. This report was
produced on or about 6 March 2003 by a DoD working
group. . . . This report would be relevant to the
defense’s case because the report constitutes some
evidence of the duties owed to a detainee (viz. in the
context of a dereliction of duty charge) by a
government agent and of whether these duties change if
the agent is ordered to engage in conduct that
constitutes maltreatment.

Emphasis deleted.

The Government denied the request, asserting that the DoD

report was not relevant because Appellant’s actions were not in

furtherance of an official interrogation.

At a session of the trial held pursuant to Article 39(a),

UCMJ, 10 U.S.C. § 839(a) (2006), the defense renewed its request

for the DoD report. The military judge declined to compel

release of the report because the defense had not demonstrated

relevance, but the military judge invited a future motion if

relevance could be established at trial.

Later in the same Article 39(a) session, the defense

revisited the memo issue. At this point, the defense counsel

conflated the DoD report with other memoranda that were not

previously mentioned:

Just a minute ago, we were talking about a memo from
the Department of Justice, from various Staff Judge
Advocates and General Counsel to the President of the
United States, to the CIA and other government
agencies, to the Secretary of Defense. We understand

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there were memos given, perhaps, to Lieutenant General
Sanchez and to other officials within the direct chain
of command of Specialist Graner pertaining to the
legal status or not of detainees during the war on
terrorism.

There was then a lengthy colloquy between the military

judge and defense counsel in which the defense proposed several

broad theories on why the memos were needed: (1) that the memos

established that the detainees were not protected by any of the

laws of war, and therefore Appellant could not possibly maltreat

them; (2) that Appellant lacked the state of mind necessary to

maltreat because he thought he was just following orders; and

(3) that there was unlawful command influence in general. The

military judge again rejected the request because Appellant had

not formulated a sufficient theory of relevance but again

invited the defense to resubmit the discovery request once

relevance had been established. The defense did not submit

another request for the DoD report or any other memos during the

remainder of the trial.

The Government claims that the DoD report was publicly

released on the DoD website one day after the Article 39(a)

hearing.2

2
The Government has moved to submit an affidavit stating that
the assistant trial counsel disclosed the DoD report, as well as
other documents, to the defense. As noted earlier, this Court
has denied the motion to submit this affidavit.

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B.

Appellant argues that the military judge abused his

discretion by not compelling the Government to submit the

various memoranda because they would have supported the defense

theory that senior government officials had authorized the sort

of detainee treatment that Appellant engaged in.

We review a military judge’s ruling on a request for the

production of evidence under the strict standard of an abuse of

discretion. United States v. Rodriguez, 60 M.J. 239, 246

(C.A.A.F. 2004). “A military judge abuses his discretion when

his findings of fact are clearly erroneous, the court’s decision

is influenced by an erroneous view of the law, or the military

judge’s decision on the issue at hand is outside the range of

choices reasonably arising from the applicable facts and the

law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F.

2008); see United States v. Travers, 25 M.J. 61, 62 (C.M.A.

1987).

“The trial counsel, the defense counsel, and the court-

martial shall have equal opportunity to obtain . . . evidence in

accordance with such regulations as the President may

prescribe.” Article 46, UCMJ, 10 U.S.C. § 846 (2006). The

government’s suppression of evidence is a statutory violation if

it violates the President’s discovery rules, promulgated under

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Article 46, UCMJ, which appear in Rules for Courts-Martial

(R.C.M.) 701-703.

Three of these rules are potentially applicable to

Appellant’s discovery request:

(1) Each party is entitled to the production of evidence

which is relevant and necessary. R.C.M. 703(f).

(2) Upon the request of the defense, the government must

produce any documents that are in the possession of military

authorities and are “material to the preparation of the defense

or are intended for use by the trial counsel as evidence in the

prosecution case-in-chief at trial.” R.C.M. 701(a)(2)(A).

(3) The trial counsel must disclose to the defense

the existence of evidence known to the trial counsel which

reasonably tends to:

(A) Negate the guilt of the accused of an
offense charged;

(B) Reduce the degree of guilt of the accused of
an offense charged; or

(C) Reduce the punishment.

R.C.M. 701(a)(6).

Of course, these rules are themselves grounded on the

fundamental concept of relevance. As Professor Wigmore put it

over a century ago: “None but facts having rational probative

value are admissible.” 1 John Henry Wigmore, Evidence in Trials

at Common Law 655 (Peter Tillers rev. 1983). For us, the

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standard is set out in Military Rule of Evidence (M.R.E.) 401:

“‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.”

Applying this standard, we conclude that the military judge

did not abuse his discretion in determining that the defense did

not present an adequate theory of relevance to justify the

compelled production of the DoD report, the only piece of

evidence identified with specificity in the defense request.

None of the theories enunciated at the Article 39(a)

session by Appellant established the relevance of the request.

There was no evidence that Appellant’s state of mind at Abu

Ghraib was in any way affected by a DoD report that he had never

seen. Appellant’s affirmative duty to protect the detainees

under his charge from abuse was not affected by any views on the

international legal status of Iraqi detainees set out in the

report. Abuse of detainees in the custody or control of the

United States may form the basis of a maltreatment conviction.

See United States v. Smith, 68 M.J. 316, 323 (C.A.A.F. 2010).

Finally, Appellant failed to present any “facts which, if true,

constitute unlawful command influence.” United States v.

Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).

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The military judge also did not abuse his discretion in

declining to order the production of the various other documents

that Appellant maintains on appeal that he requested. R.C.M.

703(f)(3) requires that any request for the production of

evidence shall list each piece of evidence and a description of

each item “sufficient to show its relevance and necessity, a

statement where it can be obtained, and, if known, the name,

address, and telephone number of the custodian of the evidence.”

The defense failed to meet this burden with respect to any

document encompassed by this issue other than the DoD report.

IV.

A.

Major William Ponce was a mid-level military intelligence

officer who had been assigned to both Afghanistan and Iraq.

Major Ponce wrote an e-mail on August 14, 2003, to several

people in which he stated that he favored the more forceful

treatment of detainees during interrogation. Abu Ghraib did not

yet exist as an interrogation center when the e-mail was sent,

but several of its recipients may have occupied positions at Abu

Ghraib. There is no evidence that Appellant or any of his

coconspirators ever knew about this e-mail. Appellant moved for

its admission prior to trial on the basis that it may have

affected the orders that issued from military intelligence

teams. The Government objected on the basis that it was

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irrelevant, was hearsay, and lacked foundation. The military

judge sustained the Government’s objection because the e-mail

was not relevant. Later, there was a renewed discussion about

Major Ponce’s e-mail. The military judge again denied the

admission of the e-mail because it was too far removed in time

and space from Appellant’s activities at Abu Ghraib.

Appellant also wanted to call Major Ponce to testify before

the court members to establish when military intelligence

officers generally became more forceful in their treatment of

detainees. The military judge initially agreed to allow Major

Ponce to testify about the “conditions for actionable

intelligence and its impression on the [military intelligence]

community in the September time-frame and the October time-

frame.” But the military judge changed his mind after the

defense moved to introduce the testimony of Roderick Brokaw, a

retired military interrogator with the Army who had worked as an

interrogator at Abu Ghraib, because the military judge reasoned

that Mr. Brokaw had a strong connection with Abu Ghraib, while

Major Ponce’s connection was tenuous at best. Mr. Brokaw was

permitted to testify “as to pressure from higher echelons to

produce actionable intelligence.”

Later, the defense again argued that Major Ponce should be

able to testify in order to show “the frustration that higher

command was feeling” about being unable to acquire intelligence

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within the existing interrogation parameters, but the military

judge did not allow his testimony because it was unclear who

received Major Ponce’s e-mail or what impact it had on the

interrogators at Abu Ghraib.

B.

Appellant argues that the military judge abused his

discretion when he declined to admit Major Ponce’s e-mail or

allow Major Ponce to testify, purportedly because Major Ponce

would have helped establish the defense theory that his

superiors authorized the rough treatment of detainees.

We review a military judge’s decision on whether to admit

evidence for an abuse of discretion. United States v. Weston,

67 M.J. 390, 392 (C.A.A.F. 2009).

The military judge did not abuse his discretion when he

declined to admit Major Ponce’s e-mail and testimony. There was

no evidence that Appellant, or anyone giving orders to

Appellant, knew about Major Ponce’s e-mail, or had any contact

with Major Ponce. Appellant was still able to present direct

evidence that he and his coconspirators believed that they were

supposed to soften up the detainees. Given the total lack of

evidence connecting Major Ponce’s opinions with Appellant’s

conduct, neither Major Ponce’s e-mail nor his expected testimony

had a tendency to show that any fact of consequence to the

court-martial was more or less probable.

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V.

A.

Thomas Archambault, a non-military training instructor and

use-of-force specialist, testified for the defense as an expert

on the use of force. At a pretrial Article 39(a) hearing, Mr.

Archambault testified that use of the leash on detainees and the

naked pyramids were reasonable uses of force. With respect to

the tether, he stated that the use of the tether around the neck

of the detainee was a reasonable means of cell extraction under

the facts of this case. While Mr. Archambault said that the

tether should not have been used around the neck as it was, he

reasoned that the tether may have accidentally slipped from the

upper torso to the neck. Mr. Archambault testified that the

fact that pictures were taken of the leash incident did not

render the tether incident unreasonable because the photographer

could quickly have come to the other guard’s aid in the event

that the detainee became violent.

With respect to the naked pyramids, Mr. Archambault

testified that this sort of “stacking” could be an appropriate

use of force, even if it was neither authorized nor approved by

any professional organization or training manual, as a means of

controlling and containing unrestrained detainees. Here, Mr.

Archambault reasoned, the detainees were not in restraints, they

were shouting to each other in Arabic, and the detainees were

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all in a small space with limited guards. Mr. Archambault also

testified that the form of stacking here prevented “positional

asphyxia,” a dangerous medical condition where a person has

trouble breathing as a result of pressure on the diaphragm. Mr.

Archambault conceded that he was aware of only one incident of

stacking humans and that occurred at Attica Prison, a civilian

facility in the United States, by guards taking back the

facility from rioting, unrestrained inmates.

The military judge ultimately limited Mr. Archambault’s

testimony to the point that the detainees would not have

suffered from positional asphyxiation because of the manner in

which they were stacked. The military judge refused to allow

Mr. Archambault to testify concerning the appropriateness of the

leash (or tether) around the neck and stacking techniques. The

military judge concluded that such testimony was irrelevant and

not helpful to the court members. Mr. Archambault knew of no

authority for either technique, and the stacking at Attica had

occurred under very different circumstances.

B.

Appellant argues that Mr. Archambault’s testimony was

improperly restricted because Appellant was denied his most

effective rebuttal to the tether and pyramid incidents.

An expert witness may provide opinion testimony if “(1) the

testimony is based upon sufficient facts or data, (2) the

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United States v. Graner, No. 09-0432/AR

testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably

to the facts of the case.” M.R.E. 702. “The military judge has

broad discretion as the ‘gatekeeper’ to determine whether the

party offering expert testimony has established an adequate

foundation with respect to reliability and relevance.” United

States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001), quoted in

United States v. Allison, 63 M.J. 365, 369 (C.A.A.F. 2006).

We find that the military judge did not abuse his

discretion when he limited Mr. Archambault’s testimony to

positional asphyxia. The military judge properly determined

that Mr. Archambault had an insufficient basis to conclude that

the naked human pyramid and the tether around the neck were

reasonable uses of force.

VI.

The judgment of the United States Army Court of Criminal

Appeals is affirmed.

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EFFRON, Chief Judge (concurring in part and in the result):

I concur in the result with respect to Issue I. I concur

with the opinion with respect to Issue II.

Issue I, as granted, states:

WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF THE ACCUSED BY FAILING
TO ORDER DISCLOSURE OF MEMOS THAT SET OUT
APPROVED “ENHANCED INTERROGATION TACTICS” FOR
HANDLING DETAINEES IN UNITED STATES CUSTODY.

The threshold question with respect to prejudice is whether

the Government provided the defense with timely disclosure of

the requested material. As reflected in the following

chronology, the Government provided timely pretrial disclosure

of the 2003 Department of Defense Working Group Report on

Detainee Interrogations in the Global War on Terrorism

[hereinafter 2003 DoD Report], the primary document at issue in

the present appeal.

On June 12, 2004, Appellant submitted a pretrial discovery

request for the Government to provide a copy of the 2003 DoD

Report “detailing the legal obligations of the United States

government to refrain from using torture as an interrogation

technique and the legal liabilities of government agents who do

use such methods.” At that point, the Government denied the

request. On June 21, 2004, defense counsel asked the military

judge to order production of the 2003 DoD Report. The military

judge denied the motion on the ground that the defense “[a]t
United States v. Graner, No. 09-0432/AR

this time” had not made a sufficient connection to the issues in

the trial. The military judge emphasized repeatedly that his

ruling was based on what the defense had “proffered so far,” and

he advised the defense: “You are free to renew your request

upon a showing of greater relevance than what you’ve shown so

far.”

According to an unrebutted affidavit submitted by the

Government during the present appeal, the assistant trial

counsel provided the defense counsel with the requested 2003 DoD

Report on July 22, 2004 -- a point in time more than five months

before the beginning of trial on the merits. The Government’s

filing directly refutes Appellant’s claim that the document was

not provided to the defense “prior to, during, or after trial.”

See Brief of Appellant at 5, United States v. Graner, __ M.J. __

(C.A.A.F. 2010) (No. 09-0432).

Under these circumstances, there was no prejudice,

irrespective of the sufficiency of the defense motion or the

validity of the military judge’s ruling on the motion.

Accordingly, I respectfully disagree with the approach to Issue

I in the majority opinion, which rejects the Government’s filing

and proceeds on the assumption that the Government withheld the

document. Graner, __ M.J. at __ (2 n.1, 6 n.2).

Similar considerations apply with respect to the other

documents pertinent to Issue I. Although I disagree with the

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United States v. Graner, No. 09-0432/AR

decision to reject the defense motion to file these documents on

appeal, id., the result is the same because the documents at

issue do not establish material prejudice to the substantial

rights of Appellant. The 2003 DoD Report, which was provided to

the defense at trial, referred to, and relied upon, the 2003

Department of Justice Memorandum. As such, the Department of

Justice document was identified with sufficient particularity to

alert the defense of its existence at the time of trial, but the

defense did not submit a request for production of that document

at trial. Moreover, the 2003 Department of Justice Memorandum,

and the other reports identified on appeal by the defense, did

not contain information that differed in material respects from

the information in the 2003 DoD Report that was provided to the

defense during trial. The defense did not introduce information

from the 2003 DoD Report at trial. Appellant has not

established that the information in the other documents would

have been more useful to the defense at trial than the

information provided to the defense in the 2003 DoD Report.

Under these circumstances, any error by the military judge with

respect to discovery of these documents did not prejudice the

rights of Appellant. See Article 59(a), UCMJ, 10 U.S.C. §

859(a) (2006).

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BAKER, Judge (concurring in part and dissenting in part):

I agree with the majority’s analysis and conclusion with

regard to Appellant’s motion to compel discovery of the

Department of Defense (DoD) report. This report was

specifically requested, was made part of the record, and was not

relevant to Appellant’s defense, for the reasons stated in the

majority opinion. I also agree with the Court’s resolution of

the issues pertaining to Major Ponce and Mr. Archambault.

However, I do not agree with the majority’s treatment of the

issue of discovery of the various other memoranda, and

therefore, dissent from that portion of the opinion and note 1

for the reasons that follow.

Appellant raised and this Court granted the issue

challenging the military judge’s refusal or failure to order

discovery of a variety of official government memoranda said to

pertain to the handling of detainees.1 He has moved to attach

these memoranda to the appellate record.2 Unfortunately, the

1
Issue I:
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF THE ACCUSED BY FAILING TO ORDER
DISCLOSURE OF MEMOS THAT SET OUT APPROVED “ENHANCED
INTERROGATION TACTICS” FOR HANDLING DETAINEES IN
UNITED STATES CUSTODY.
2
Among other things, the motion to attach included the
following:
United States v. Graner, No. 09-0432/AR

majority, in a footnote, denies this motion in a perfunctory

manner by stating that the documents are not “necessary” and

without explaining how it can reach this conclusion without

reviewing the documents. I would have granted the motion to

attach. Alternatively, if a majority of this Court concluded

that it was beyond our authority to attach such documents to the

record, a remand to the CCA or an order for a DuBay3 hearing

would have been in order -- or any alternative mechanism,

including judicial notice, which could allow for consideration

of the documents.4 In this way, we might have addressed head-on

Appellant’s allegations that he was operating in a command

climate, if he was not following specific instructions, that

condoned and tolerated detainee abuse. Given the Court’s

(a) Memorandum from John C. Yoo, Deputy Assistant
Attorney General, Office of Legal Counsel, Dep’t of
Justice, on Military Interrogation of Alien Unlawful
Combatants Held Outside the United States to William
J. Haynes II, General Counsel, Dep’t of Defense
(Mar. 14, 2003).
(b) Major General Geoffrey Miller, Annex 20: Assessment
of DoD Counterterrorism Interrogation and Detention
Operations in Iraq (U), Taguba Report with Annexes
(AR 15-6 Investigation of the 800th Military Police
Brigade), available at
http://www.dod.gov/pubs/foi/detainees/taguba).
(c) Memorandum from Donald Rumsfeld, Sec’y, Dep’t of
Defense, on Counter-Resistance Techniques in the War
on Terrorism to the Commander, U.S. Southern Command
(Apr. 16, 2003).
3
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (C.M.A.
1967).
4
C.A.A.F. R. 30A(b).

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refusal to directly address this claim, Appellant is left to

allege that he was singled out for prosecution and did not

receive a fair trial, writ large. Further, addressing the claim

directly would afford Appellant, and the public, the knowledge

that his claim, meritorious or not, was addressed in detail by a

federal civilian court.

Instead, Appellant’s specific and broader claims have been

dismissed with a perfunctory wave of the judicial pen. True, at

the time of trial, Appellant did not describe the memos in

question with specificity, or directly link those memos to his

conduct. However, the majority does not explain why, how, or

if, Appellant’s counsel could have identified these memos with

sufficient specificity in order to now support a relevance claim

on appeal. Neither does the majority indicate whether the memos

were classified at the time of trial. More importantly, absent

review of the memos, Appellant and the larger audience are left

to wonder whether the memos are in some manner relevant to

Appellant’s broader (and more amorphous) argument regarding

command climate.

Of course, these documents can now be described with

particularity and are publicly available. We know what they

say, and can address Appellant’s relevance arguments in detail.

Instead, Appellant and the larger audience, including the

public, the military community, and the victims of Appellant’s

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abuse are left to review the memos on their own and reach their

own determinations as to whether or not they were relevant, and

in what manner, without benefit of a full judicial vetting and

application of legal principles. The interests of justice and

the military justice system would be better served were the

documents attached to the record and subject to judicial review.

4