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13 Jun: aspals comments defending the military system reminds me of someone serving to save the match not realising the game is over.  Tess
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I am no longer in the game - I retired last year.    Aspals
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13 Jun: aspals said orders were given to APA by the chain of command. Who gave those orders? What happened?  Kantfan
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Nothing happened, as the order was not obeyed.    Aspals
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13 Jun: if things are as bad as aspals describes about summary justice under the new system then perhaps some defence lawyer will challenge it. seems quite likely.   Will
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13 Jun: The HL ruling referred to by Scipio has really confirmed the view taken by the Court of Appeal and doesn't deliver any surprises. The jurisdictional point remains that held by the CA that anyone in the custody of British forces is entitled to the rights under the Human Rights Act. In the case of Iraqis who were not in our custody, those rights under the Act (and Convention) do not apply. This followed the Bankovic decision. As for the longevity of the military justice system, as has already been mentioned, the Mendonca case was hardly what one might describe as a typical court martial: civilian judge, civilian prosecutors and civilian defence. If we are talking about perceptions, my perception of that trial was of the Old Bailey sitting in Bulford.   Pegasus
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13 Jun: the House of Lords decision today in the Musa Case was interesting. I heard an interview with the lawyer for the appellants call for a public inquiry. I agree that it's essential to get to the bottom of this terrible crime and for the truth to be layed bare. A public inquiry is the only answer. I have to agree with the view that the military system is too incestuous and taking the Findlay point about perceptions does not induce a perception of independence and impartiality. With all the other cases against British soldiers who either killed or injured Iraqis ending in acquittals the court-martial of Colonel Mendonca and his men dealt a tremendous blow against the military system of justice. The perception is very clear: any soldier put on court martial trial gets acquitted if the incident took place on operations.   Scipio
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Not quite all, Scipio. The "Breadbasket" case ended with the conviction of the accused. That case was prosecuted by military prosecutors and heard by the Vice-Judge Advocate General, a very experienced judge in the military system.    Aspals
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13 Jun: very noble to protect identities but the issue is very important for us to know who doesnt understand the stakes.  Tess
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12 Jun: If the army wasn't one of those that thought the TSPA should follow mod policy who were those that did? Presumably the mod was one  Tess
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I do not really want to name names. The detail provided is there to set out the army position as advised by its lawyers.    Aspals
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12 Jun: (sent on 11th) who's more dangerous, definitely the mod.  Tuppy.
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11 Jun: If court martials are the only part of the system that Aspals says are complying with the law where does that leave CO's powers? They are vital..   Pongo
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It is an accepted legal fact that CO's powers are non-compliant with the European Convention chiefly because he is not an independent and impartial tribunal (being prosecutor and judge), he hears and tries criminal charges (within the meaning defined by Engel) and the soldier is deprived of the right to legal advice and often coerced into accepting summary dealing. The argument goes that the right to appeal the CO's decision to the Summary Appeal Court makes all this compliant, as the SAC is a compliant court and hears the case ‘de novo'. It is not an argument that many people have confidence in, as there is enormous peer pressure on soldiers not to buck the system by challenging the CO and many appeals that are presented to the SAC are actually instigated by the Reviewing Authority on technical points and not by the soldier, but the Services (and MOD) advance it as their answer to critics. The trouble is that the post 2000 Act system has not been tested in Europe (please correct me if I'm wrong).
Things get worse, however, under the AFA 2006 as the powers of non-compliant CO's have in fact been increased, both in terms of offences they can deal with and the punishments they can inflict (up to three months loss of liberty). These are non-judicial punishments. The army never wanted these extensions to COs powers as it was eager to encourage COs to use more administrative punishments and was wary that, as it had the most cases of summary dealing (about 12,000 per year) it would be the target of choice for many defence advocates seeking to take the system on. The navy saw nothing wrong in increasing COs' powers as they already had the power to lock up for three months and said they never had a problem with it, but they do not use that power more than a couple of times a year across the whole navy.
When the AFA 2006 comes into force, we should not be surprised if the Services each issue internal guidance to their COs about limiting the use of these quite extraordinary additional powers. While guidance is not law and therefore cannot override the CO's actual statutory powers, the prudent CO will understand the wise counsel such guidance offers and the reasons behind it.
All this may strike you as slightly absurd but I fear it is the natural consequence of the MoD trying to make "one size fit all" in spite of the immensely different scale of operation in each Service. I leave it to readers to reach their own conclusions about the prudence of extending the powers of a non-compliant authority to the extent that the legislation has.   Aspals
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10 Jun: who was daft enough to suggest that the T-SPA would have to follow MoD policy? Hardly the way of an independent prosecuting authority. Wouldnt that breach the Findlay principles?  Tess
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It would have breached the Findlay principles, but it was an idea shared by two of the 4 main parties discussing it - the army was not one, I hasten to add.   Aspals
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10 Jun: Referring to Pongo's last comment, the court was barely recognisable as a military court, apart from the officers on the board and the court orderlies. The decision to acquit Colonel Mendonca was the judge's not the court's.   Pegasus
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10 Jun: Not sure which is more dangerous, fighting the Taliban in Afghanistan or insurgents in Iraq or the MOD in UK. What a dirty business.   Will
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10 Jun: Kaz If there is evidence against your ex-husband, he will be reported to his commanding officer who will then decide whether to refer the case to the Army Prosecuting Authority. They will decide whether to prosecute him if they consider there is a realistic prospect of conviction (it is more likely than not that he did it). Although you are German, and the German authorities would appear to have primacy of jurisdiction in this case because the victims of this alleged crime are German, the German Authorities have a standing waiver of jurisdiction in favour of the armed forces (unless within 21 days they recall jurisdiction). The effect is that the case will be dealt with under military law. Hope that helps.   MilLaw.
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9 Jun: General question on proceedings when serving soldier has been reported for signature fraud to RMP. I am the ex-wife of a serving soldier and I am a German citizen. He had forged my signature with on insurance documents. Please help  Kaz - true identity withheld
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8 Jun: Sounds like the army got stuffed by the MOD and the other services. (I assume this refers to my reply of 7th June, webmaster)  Will
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I wouldn't blame the other two services. The Navy had never had PPCMs and the RAF did not have the funding to reintroduce them for the small number of courts martial they had. The tragedy was that the army never stood up to MoD and insisted that there was a legitimate need for PPCMs which they were going to address for their service.   Aspals
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8 Jun: Re Pegasus comment. However the court was constituted or who appeared for who the trial was by court martial. It was a military court that made the decisions.   Pongo
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8 Jun: ooh Aspals having a go at mod? don't you support the tri service initiative then.  Tess
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I do support the tri-service initiative, Tess, as it relates to the prosecuting authority. I am also very much a believer in the military system of justice. Harmonisation of service law and the production of a tri-service manual were long overdue and make good sense. However, while I support the tri-service prosecuting authority, I believe it will be an inexorable step towards civilianisation (something I do not believe the Services will lose any sleep about, which is in itself ironic, as it is the only part of their disciplinary systems which is HR compliant), but at the same time it will be more difficult for the chains of command to give orders to the T-SPA (which has happened in the past to the APA) and will therefore be perceived as being truly independent from the three chains of command. There was a suggestion that the T-SPA would have to follow MoD policy, but it was pointed out that it will be up to the head of that organisation to decide what its policy will be.
I do wish the organization well when it comes into being in 2009 and I hope that the three Services, and MoD, respect its independence.   Aspals
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7 Jun: The pro-Mendonca style of reporting of the Mail and Telegraph is really underlined by the absence of reference to any of the many reports posted on Army Rumours or here expresing concern and doubts over Colonel Mendonca's treatment and fate.
I happen to agree with Pongo that MOD will most likely settle the case brought by Baha Mousa's family. Mind you, you can't blame them. Its an overwhelming case evidentially by the looks of things written about it on Aspals and in the less biased press.  Tess
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7 Jun: I'm not sure I understood Aspals view that the ECtHR has been duped over PPCMs. Surely we haven't been representing to the ECtHR or CMAC that we have these officers sitting on trials when we haven't? if we have, what effect will that have on cases that have been decided since the abolition of these officers if, as you say, they are considered to be a recognised safeguard?.  Kantfan, (true identity withheld on request)
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In Grieves, the ECtHR said that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making deprives naval courts-martial of what was considered to be an important contribution to the independence of an otherwise ad hoc tribunal. In army and air force cases, they emphasised the importance of the role the PPCM played. There is clear and consistent authority to this effect throughout the ECtHR jurisprudence and our own House of Lords (Hastie and Spear).
Whether the ECtHR has been duped was a slightly tongue-in-cheek remark. I don't think that there has been a specific representation by the UK that PPCMs are still sitting. The cases where there were references to PPCM arose prior to the abolition of the post by the army and I don't believe the point has arisen since. But it is worth remembering that in Findlay, the presence of an independent judge advocate was not enough to answer the objective concerns about the impartiality of the tribunal for the purposes of article 6. The court looked for a number of safeguards and the PPCM was one - a significant one. Morris of course, described the PPCM as "a significant guarantee of independence on an otherwise ad hoc tribunal". Whether, therefore, a trial that takes place without such a significant safeguard may, according to the existing jurisprudence, raise legitimate doubts about its compliance with article 6 is a moot point.
To go back a llittle, after the McKendry case, the army policy people decided to abolish the role of PPCM. I shan't mention names. This happened in about 2001 and delighted the judges and some ALS officers. The policy officers have since ignored the views of the European Court and failed to restore the post. Much of the responsibility for this decision must be shouldered by MoD as they insisted that, for the sake of tri-service harmony, the three services should present a united front. As the Navy never had PPCMs and didn't know what they were, and the RAF could not presuade their paymasters to re-appoint them for the few trials they had, there was no enthusiasm from those services, which left the army, as usual, isolated (a regular ploy by MoD who would equate the three services totally equally and pay no regard whatsoever to the scale of operation of each). The result, was as the MoD intended but in the process they cocked a snook at the decisions of the courts, ie the law. The services could have used PPCMs for more than courts-martial. In fact, in 2001 I proposed that they be used for internal hearings/boards of inquiry in cases where individuals asked for redress. This was integral to a revamping of the system as it existed at the time and upgrading the administrative processes under AGAIs. But this was all overtaken by the MoD's "cunning plan" to scupper the post.
As a post script, I should add that the antipathy to PPCM's was shared by many defence advocates who argued that they were akin to professional jurors. As mentioned above, that argument had no currency with Europe or our own House of Lords. See in particular the analysis of Lord Rodgers at §58 et seq of Hastie and Spear.   Aspals
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7 Jun: Looking at the criticism by the Mousa family, what you've got to keep in mind is the fact that the swipe at the military system isn't really a fair one in this case. As has been said already, the judge was a civilian, the prosecution (bar one) and defence were civilian and, importnatly, it was the judge not the court that made the decision to chuck out the cases at half time. Of those remaining can you blame the court for acquitting them when the judge had already acquitted their superior officer responsible for the conduct of his unit?  Pegasus
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6 Jun: Didnt the navy lawyers try to cling on to military judges and then lose in Europe?  Tuppy.
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The case of Grieves-v-UK held that trial by uniformed judge advocate breached article 6 of the ECHR. The CMAC, in Dundon followed that decision and also held that navy courts-martial lacked a further safeguard in the shape of Permanent Presidents of Courts Martial who were considered to be an important contribution to the independence of an otherwise ad hoc institution. Interestingly enough, none of the Services has heeded the ECtHR's (and CMAC's) concerns about the importance of the PPCM. Although there has never been a statutory basis for that appointment, it is very risky that such a recognised safeguard has been deliberately omitted by the Services from their systems of courts-martial. Unfortunately, if you read the ECHR decisions, the court seems to be under the impression that PPCMs still exist. It will be interesting to see whether they return under the tri-service system. Bearing in mind the open antipathy of many judge advocates, who felt that PPCMs did not always do as they were told, it is likely that they have now had their day. What will the ECtHR make of the fact that it has been duped for so long?    Aspals
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6 Jun: Look at it this way, a lot of people have done their best to make sure that the full story didnt come out whether deliberately or by chance. The defence at trial never got the chance to put their story - they didnt need to because the judge passed a sentence that they were content with. As far as Mendonca was concerned, the case was chucked out before he was questioned about what happened. For me, one of the things that sticks out is that with all the screaming and shouting going on, either what was happening was officially approved or everyone was stone deaf. You can bet that it wouldnt have been only the prosecution that would have put some awkward questions to him. Now the families are going to sue MOD. Who can blame them. Their view was quoted as "We see that the court martial was not a proper court at all -- it was biased by its very definition as it was carried out by the Ministry of Defence against its own people, which cannot be fair. The British army is not going to prosecute its own." We are back to the point about perceptions. Now with the civil action i will bet anyone that it will never get to court. MOD will settle it because they wont want to answer the difficult questions that will be posed at them and force out into the open the gory details of what went on and who was responsible. Good luck to the victims and Musa's family.   Pongo
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6 Jun: Responsibility has not stopped being part of an officer's remit but these days more are keener on avoiding it than standing up and being counted. Mendonca has avoided being questioned about what went on in his battalion and what he knew about. Choosing to leave the army before the inquiry is not honourable in my view, no matter what his wife says the reason is. Like Scipio says an oridnary soldier would not be afforded the same privilege, au contrare he would be forced to face the music. I agree that the army is probably allowing it as a way of avoiding further embarrassment when it emerge how far up the chain of command the rot actually went. I still cant believe that any officer or interrogator could have been in any doubt that how they were treating those prisoners, none of whom were terrorists, was right when the 5 techniques had been banned as long ago as 1972 and this knowledge was part of officer training.  Will
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6 Jun: Come off it Pete. We've been here before over military judges and the like and we lost big time. Remember the Findlay case? We lost the argument way back in 1996, and a good thing too. It's not a question of whether military judges are actually impartial but whether, for the point of view of the person on trial they appear to be. They don't.  Tess
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5 Jun: I've just been reading some of the postings on the Mendonca thread posted on the Army Rumour Service. In spite of the messages quoted by the Daily Mail, there are some more sceptical contributors who appear quite well informed. One agreed that there are a number of questions yet to be answered. "There are other issues involving that Bn which occurred out there, which should have been brought out, but they haven't and won't. If they did, you'd see what little control they had over thier men. F*ck all was learned from the 'Breadbasket' incident. Who's in charge at the end of the day? Has responsibility suddenly stopped being part of an Officer's remit? (or that of anyone else with rank). I doubt very much that a common soldier would be afforded the same luxury of choosing to leave. I don't see why he is allowed to, if indeed there was ground for AGAI action." Good point. The army shoudl not have let Mendonca go before the inquiry.   Scipio
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5 Jun: looks like the yanks dont have any problems with military judges, the one reported today really put the cat among the pigeons by kicking out the cases against two guantanamo prisoners. no human rights act there, but the military judges fearlessly did their jobs.   pete
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5 Jun: Someone asked about the chain of command taking administrative action after criminal proceedings. This is quite common and is akin to the internal process of any company where there has been wrongdoing alleged. Let me give an example. One of the senior executives of a financial company which has a reputation for integrity is prosecuted for an offence of dishonesty (let's say, skimming money from a client's account). The prosecution is unable to prove, BEYOND A REASONABLE DOUBT, that the individual was dishonest. He is acquitted. Don't forget, a jury can only convict if they are satisfied to that very high standard. If they think he MIGHT have done it, or he PROBABLY did it, they MUST ACQUIT. After the acquittal, the company has a legitimate interest in protecting its reputation and therefore instigates an internal inquiry to see whether the individual has behaved in a manner that justifies his dismissal (the standard of proof is now the lower standard of proof on the balance of probabilities, that is, it is MORE LIKELY THAN NOT, as these are not criminal proceedings). The situation in the army is not dissimilar. Every soldier and officer is expected to uphold the reputation of the army through Selfless Commitment: to put others before yourself; Courage: to face up to danger and do what is right; Discipline: to maintain the highest standards, so that others can rely on you; Integrity: to earn the respect and trust of your comrades; Loyalty: to be faithful to your comrades and your duty; and Respect for Others: to treat others with decency at all times.
If there is a suggestion that these Values and Standards may have been breached, and that breach in turn is in breach of the service test ("Have the actions or behaviour of a serviceman adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the Army?"), then administrative action is appropriate.
I am not surprised that after a trial lasting several months, concerning the death of one civilian in military custody and the severe injury to others, and where the trial judge made remarks that the person responsible for the death had not been established and commented about individuals closing ranks (effectively to obstruct justice) that the army considers it needs to look at the matter more closely, taking into account the judge's remarks and the evidence as given in court and as presented in statement form. After considering these matters, a proper decision can be made on whether the service test was breached by any individual and, if so, AGAI action taken. While there is no right to legal representation at public expense (as is the case with employees in civilian life facing internal disciplinary proceedings or who take proceedings before an employment tribunal), anyone affected may pay for his own legal representation. So the soldier is in no worse position than his civilian counterpart. In fact, the AGAI 67 procedure ensures that he is kept fully informed at every stage of an investigation and sees the evidence gathered and is allowed to comment on it.
I suspect in the present case, the first step will be to conduct an inquiry to see what went wrong. Then the chain of command will be in a position to decide whether to take formal disciplinary or administrative action against anyone. Just to make it clear, no one can be prosecuted for the same offence twice. Although the Criminal Justice Act 2003 abrogated this rule in relation to "qualifying offences" (eg murder, manslaughter, kidnapping, sexual offences, some war crimes - see Sch 5, Part 1 ) where there is new and compelling evidence ie substantial, reliable and probative - it is only likely to be used in major cases where there is DNA evidence or new scientific techniques which identify evidence that was not possible to do previously. The reality is that the vast majority of cases, an acquittal is the end of matters.   MilLaw.
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4 Jun: The Army Rumors site mentions that the internal process planned under army rules/procedures is vindictive and it does sound a bit harsh. No wonder colonel Mendona decided to quit. Can anyone say how come the army can take action after a court has acquitted on the same facts?  Brian.
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4 Jun: A lots been said about Mendonca's responsibility but what about the RSM where was he? I agree that an inquiry is needed but think it should be a public inquiry.  Tuppy.
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4 Jun: No. Was it wrong to put Mendonca on trial? No.Would a military court ever convict a senior officer? Only the International Criminal Court should try cases lilke this.  Lorna.
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4 Jun: A point which hasnt been really dealt with is the one made by Pete (28 may) about why the Iraqis were left in the hands of men who had a motive for revenge and left there for more than 14 hours, as if that isn't long enough.
As for the comments on Army Rumors, I tried to post to the Mail on saturday about the two stories they ran, but they didnt publish probably because my comments ran counter to their pro Mendonca line. So much for unbiased reporting.  Andreas
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2 Jun: Ramon asked who Colonel Black is. he is the Regimental Secretary (a retired officer) who made the startling announcement that "Our officers and men need to be able to operate confidently on our behalf without looking over their shoulders inhibited by the fear of such actions by an over-zealous and remote officialdom. It has been gravely disappointing that it took over three years for the judicial authorities working in the benign conditions of their comfortable offices to decide to bring to trial a number of gallant men who had to make life-and-death decisions in a split second. Our officers and men need to be able to operate confidently on our behalf without looking over their shoulders inhibited by the fear of such actions by an over-zealous and remote officialdom." when he was referring to a case of the death of a civilian who died while in the custody of QLR soldiers, not fighting in combat. So, you need to treat anything he says with some caution. If anyone was over zealous, Colonel, it was those who beat the living crap out of the Iraqis, don't you agree?.   Will
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2 Jun: reading the comments on this site youd think the squaddy was the scum of the earth. he's not. whatever the actions of a few bad apples, and so far only one was convicted although i admit there are unanswered questions, personally I believe that our army is well trained and well disciplined and the majority of blokes wouldnt dream of doing what was done to the Iraqis.   pete
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2 Jun: I found Lewis' reference to the basis on which the war was founded to be most interesting within the context of the ICC and command responsibility. Hopefully, the army's internal inquiry, with or without Mendonca, will expose a little more about the level of corporate responsibilty for the brigade sanctioning of practices which were outlawed since 1972 and expressly declared illegal by the ECtHR in 1978.   Will
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2 Jun: To answer your point, Lewis, I am saying that the orders were manifestly illegal. That was why Mendonca asked for legal advice and he got an answer that was plainly wrong as he knew from his own training. He chose to shut his eyes and to blindly obey that illegal order. That is how it looks to me. We dont know what he actually thought because he never gave evidence. Mind you, someone needs to check the credentials of the lawyer giving that advice and the sort of training he had. Was he legally qualified or a trainee or was he a civilian TA?  Tess
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2 Jun: I've just been reading the views of the contributors to the Army Rumors web site which were quoted in the press. I find it really depressing that theres so much heartache expressed over the resignation of a man who was in charge of a unit that brutally murdered an innocent civilian and injured others, with no one focussing on what happened to the victims, almost treating them as the guilty parties for bringing about the end of the career of a war hero. Its almost as if they think that what went on should not have been investigated at all just because the officer was a war hero. Colonel Mendonca was found not guilty in the criminal process. That is due process of law. Some people here think that was a wrong decision and others think that there was no evidence against him. As an outsider, I have a problem with the last position. I'm amazed the prosecutors bring a case without evidence. I don't know if they were criticised for this by the court but they should be. The fact is I don't believe it. Nobody brings a high profile case like this without evidence. So what went wrong? May be when we read the story of the junior man who pled guilty we shall find out the truth. He can reveal what was unsaid in court and what really went on in the unit. All the same it is incredible that no one has been held responsible, apart from the man who pled guilty. It is as if no officers or enlisted men existed in the unit and that the whole ill-treatment was an invisible episode. Now I read that the commanding officer checked to see whether the techniques used were legal. He was told they were even though they were not. He has never given an explanation on oath to the court and been cross examined about what went on and what he knew of it, so how the press can write the things they do is amazing, generally on the word of the officer's wife or a Colonel Black (I'm not sure of how he fits in to all this). Now he will not even be forced to appear before an internal inquiry to answer difficult questions because he is allowed to leave the army.
I think someone on this site already said that no soldiers prosecuted for crimes in Iraq have ever been convicted of offences against locals. I agree with those who say that this case failed to deliver justice to Baha Musa and the other prisoners. It severely damaged Britain in the eyes of many in the Middle East and fed the prejudices of every man of violence there by demonstrating that the life of an arab is worthless. I know this from people I spoke to who said what did I expect. The British and Americans promised so much but ended up behaving just like Saddam. I can bet that if the person who died was Britishthere would be less sympathy for the man in charge. The death of Baha Musa is a stain on the reputation of not just the British army but also of the nation and its entire system of criminal justice. In the eyes of those outside Britain it is a stain that will take many years to remove and to restore the credibility it once had as a nation that brought the common law to many countries and that was principal in the creation and drafting of the European Convention on Human Rights, being rights that reflected Britain's legal standards. The superficial will continue to complain about the perceived wrong done to the colonel, almost as if nothing should have happened when Baha Musa died. The informed will greave over the wrong done to the victims and to the national reputation by an army unit out of control when guarding civilian prisoners and wonder why it was that this commanding officer never gave an explanation on oath which could be challenged by the prosecutor.   Ramon
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1 Jun: Lewis, you and Aspals seem to be trying to stifle debate over this trial. Lewis is obviously a busy man but it is up to him whether or not he answers the points I and others make. We dont' charge each other for contributing to the Sounding Board.
I do know that the opening is not evidence, but it is based upon the evidence the Crown has in its possession and intends to call. So it shows the state of the Crown's case before the closing of ranks that happened when some witnesses gave their evidence. Lewisis clearly annoyed by the fact that a lot of people disagree with the ruling. There is no need to challenge those views in the manner he has by getting personal. We are not arguing about guilt/innocence. At least that's not how I am putting my point across. The simple issue is whether there was sufficient evidence for the case to proceed beyond half time, see the test in Galbraith. The judge appears to have applied limb 1 saying there was no evidence at all, but I am suggesting that 2b applies (the strength or weaknesses of the evidence are a matter for the jury). Without going over old ground again, from what I can see most people here think there was evidence to go before a jury. So do certain others who attended the trial (see this morning's Independent report on this website). Phil Shiner put it very shortly. He said "It is a matter of public record that UK soldiers were hooding all detainees, sometimes with 3 sandbags and even with old plastic cement bags, and that this was going on in temperatures of 57C. Any right-thinking person knows this amounts to torture." These are obvious points to most people. The court decision does not acknowledge what is obvious to layman and lawyer alike – or are you suggesting Mr Shiner isn't legally qualified? That all this was going on without the CO's knowledge begs the question why?
The internal inquiry now has been scuppered because the CO has resigned from the army so I presume he can't be forced to attend and give evidence. He should have been retained in service until it was all over. I bet the army is pleased to let him go to save any further embarrassing questions over the sanctioning of the breach of international law.   Scipio
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Scipio, please rest assured that I am not trying to stifle debate. On the contrary, the reason I created the Sounding Board was to encourage discussion within the parameters stipulated. In my brief response I was merely trying to concentrate on what was known ie the evidence rather than what the prosecution set out to prove. I appreciate that you may be hampered by insufficient information of the former, as the press lost interest in the case after a short while, so little of the evidence given ever reached the public. Lewis, on the other hand, was there and was involved in the trial. So all I am saying is that his assessment in my view carries some weight. Might I also add, that I think Lewis was trying to be helpful by setting out a detailed explanation.   Aspals
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1 Jun: Lewis, do you think your views of the case are influenced by the role you played? In CGS' statement, after the trial, he was clearly uncomfortable that Baha Musa, a civilian in British army custody, died. Post mortem examination show that he had suffered asphyxiation and some 93 injuries to his body. Others held in the detention centre at that time suffered similar treatment. He went on to say,
"They were subjected to a conditioning process that was unlawful and I do not seek to condone what happened. It has always been our policy that all British military personnel deployed on operations must be in no doubt about their duty to behave in accordance with the law. It now appears that this duty was forgotten or overlooked in this case.
"The Iraqis we took into our custody should have been treated properly and lawfully and they were not. This was not a case of misjudgment in the heat of battle or the heat of the moment. Nobody who knows anything about the facts has ever suggested that it was.
"It has always been our policy that all British military personnel deployed on operations must be in no doubt about their duty to behave in accordance with the law... It is only by rigorously adhering to our values and standards, and requiring alleged wrongdoers to face justice, that we will receive and merit the respect and confidence of the country and the World"
While there are many in the army and outside who think Mendonca should not have been tried, there are many who think he should. The typically jingoistic claptrap of those claiming he was a scapegoat just fail to understand that a man died on his watch, when he was in charge. Of course, had we not tried these men, it would have been interesting to see whether the ICC would have prosecuted them, which they could have done as far as I know.  Kantfan, (true identity withheld on request)
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1 Jun: I tried to post a message to the Times today in response to the comments of Mrs Mendonca. They didn't publish it. Basically, what I said was her views were hardly impartial, as she is the wife of one of the defendants. In her vitriol against the prosecution and senior army officers, she overlooks the fact that Baha Musa died and others were seriously injured while in the care of soldiers of her husband's regiment, of which he was CO. She is to be commended for her loyalty to her husband but she shows a naivity in her view of his responsibilities towards those prisoners or the fact that there was a prosecution.   andreas
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1 Jun: I thought that Scipio had already explained, Lewis, where the evidential sufficiency came from, even in the absence of oral evidence from witnesses. The COs Sandhurst training is quite key because it shows he was aware that the techniques used by his men were unlawful. So the fact that he is told that they are not should have put him on inquiry. That he didn't pursue this may be one of the reasons why the prosecution alleged negligence. What we must never lose sight of here is that these were people not cattle that were being held by 1QLR. The CO had been warned about the behaviour of his men (or are you saying the brigadier denied this in evidence) and he also breached the 14 hour deadline etc,etc. These were matters that he should have been called to explain to the court.  Tess
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1 Jun: Colin, I think you will find that the news reports are to the effect that Ms Quick was passing on the views of the Attorney General to Lt Col Mercer. She was not proffering advice herself on the issue as I understand the report.  Pegasus
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1 Jun: Come off it Lewis,there was more than enough evidence there to take the case beyond half-time. If the CO did not know what was going on in his battlation then that just reinforces the point doesnt it?
So the army has civilian lawyers who've never been anywhere near a war zone given advice to operational commanders? Whatever next. Imagine a GP giving advice on surgical techniques in open heart surgery.   Colin
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1 Jun: Again I refer everyone back to a detailed reading of the half-time ruling, particularly Tess Colin and Scipio. I suspect that you are not lawyers, although you obviously have an interest in the field of military law. I am not going to give you lecture on the laws of evidence, but Aspals has already pointed out to you that the opening is not EVIDENCE. The evidence in the case is that given by the witnesses. What the opening statement consists of is what the Crown intended to try to prove. If the witness does not come up to proof, then the evidence before the court falls short of what the Crown intended to try to prove.
What you read in the judge's ruling is a concise summary of the EVIDENCE. I am afraid that some of the contributors here seem to think that there was other evidence presented to the court. I am afraid that is a misconception, what you may have read or been told about may have been press speculation or media comment. I can assure you that it definitely was not EVIDENCE given in court. If the judge had been wrong in the facts of the ruling, it would have been the grounds that the Crown would have relied on to appeal the half-time ruling.
Of course the operation was planned and orchestrated and overseen by the commanding officer, there were a series of raids taking place that Sunday as part of the same operation, the battle group operation being based on a brigade level task, intelligence-based. That does not mean that the commanding officer was present at every one of them. He knew that there were arrests, and was entitled to rely upon his delegation to subordinates whilst he got on with fighting the rest of the battle. This is the essence of Mission Command, and is common throughout most military operations. Once they Sunday operation was complete, the commanding officer was then preparing for a similar brigade level operation on the Monday, and orders were given that Sunday evening. During the Monday he was busy on operations. Much of the criticism being levelled here is with the benefit of perfect hindsight. Nothing had been reported as going wrong prior to September 13 in relation to the handling of detainees, and the system was in place that had been tried and tested.
As far as the running of the trial is concerned, I think it would be reasonable to say that I have a good working knowledge of the running of a Crown Court trial as well as trials by court martial. The Bulford trial was in all respects identical to a civilian Crown Court trial. Others have pointed out already have the experience and expertise of the prosecution team, and the seven defence teams. The matter was heard by a very senior High Court judge. If the venue had been the Old Bailey, it would have been no different. As with any trial, the prosecution presented their witnesses for examination and cross-examination. The testimony given by those witnesses is the EVIDENCE that was heard in the trial, and on which both the half-time submissions were ruled upon, and the not guilty verdicts brought in at the end of the trial on the two remaining defendants.
I realise we could be here for weeks while everyone airs their individual snippet and I offer a response, unfortunately I do not have that much spare time as I have a business to run. If any particular point bugs you that much though, I am perfectly happy to answer any questions or give opinions on a professional footing though, please feel free to call me for a quotation!! Try to remember that a negligence charge is a charge to the same standard as "careless driving" in the criminal courts. That is, falling below the standard of an ordinary reasonable and prudent person in the circumstances. This is a bit of an oversimplification, but I am trying to make the point that some people seem to miss. If a soldier is unhappy about the nature of an order, he must carry it out unless it is "manifestly illegal". If he is concerned about the legality but the order does not appear to be "manifestly illegal" and he then seeks advice from a legal officer and is told that it is compliant, and goes on to carry out the order should he be blamed for that if the legal advice he was given was wrong?
You might recall that the whole war was founded upon conflicting intelligence and legal advice. I really don't want to get into the politics of it, but it was very interesting to note that the uniformed commanding officer was charged with negligence only (a military offence) and not with any type of war crime. If you have some time to spare you may care to read the jurisprudence of the International War Crime tribunal and the act under which some of these charges at trial were based. Commanders of military forces whether uniformed or civilian can face charges under the act. If one started going down that line, there might have been some interesting consequences for those further up the chain of command (both military and civilian). Again I point you back to my comment about the operational aspects of legal advice in the earlier posting. You have to remember that there was conflicting legal advice about many things, not just those issues that were on trial.
Take the time to look up the burden and standard of proof required to prove charges of negligence and compare them with trying to prove "recklessness". In this case a field officer was given an order and foresaw that there might be a problem, sought legal advice, was told it was compliant, and then went on to follow the order. He advised his commanding officer of the order, and of the legal check he had carried out. When the commanding officer queried what was going on with the field officer for exactly the same concerns as the field officer had, he was told of the check with the legal officer and the response. Going back to the judge's ruling, all this is in there. Quite obviously it is not negligence, and to suggest that the commanding officer would need to double check that what the field officer says is true unless he had reason to doubt the honesty of the officer is a nonsense. If the commanding officer had wanted to carry out a double check, he would have gone to the same legal officer, and presumably have been given the same answer in any event.
Some contributors to this site are particularly scathing about the courts martial system. Whilst my occupation and role as a defence solicitor are in the public domain, the background of some of the other contributors is not so clear. Consequently I sometimes wonder on what grounds they base their complaints about the military trials system. There have been legal rulings that it is ECHR compliant, in the same way that the civilian Crown Court system has been tested and found compliant. You might not like it, but it is a lawful and compliant court and that is the arena in which one has to work. In military terms, that is the battlefield on which we find ourselves - usually at the junction of four maps at nnight and in the rain! If I could find a way to prove that it was not compliant, do you not think I would take it on behalf of my clients? After all failure to do so would be to fail to act in my clients best interest, that is known as professional negligence. There would be very few practitioners who would leave themselves open to such allegations. I can safely say that although I have taken every possible opportunity to challenge the military trials system that my clients have allowed, unfortunately the opportunities to do so are rare.
Just so that that last sentence does not provoke another barrage of incoming flak, for the non-practitioners you need to remember that to bring an appeal there has to be valid grounds, the client has to consent to the appeal going forward and we can only start an appeal if we lose the case :-)   Lewis Cherry  www.lewischerry.com
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31 May: The good Colonel Mercer whose advice was obviously better than the Attorney General's was receiving guidance from a lawyer called Rachel Quick at PJHQ. I guess that the absence of a military rank means she is a civvy. Does anyone know if this is true? Can anyone say why civillians sitting in UK are working for a military headquarters and giving guidance to the military lawyers on the ground. In my view it should be the other way round.  Colin
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Rachel is a lawyer with the MOD Legal Adviser's Branch. She is a civilian but has many years experience in this field of law.   Aspals
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31 May: Tess, you Rebecca and others keep criticising the court-martial system. I don't see how this case strengthens/supports your argument. The decision in the case against Col Mendonca was made by the judge alone and did not involve the members of the court (the tribunal). Whether this case was tried in the crown court or a court-martial, the judge would have made the ruling on no case submissions. The judge was a High Court (ie senior civilian) judge. From what I gather, this was very similar to a trial in the Bailey: former Senior Treasury Counsel, a most experienced senior junior (who sits as a part-time judge advocate), another junior and a senior army lawyer as the prosecution. The defendants were each represented by Senior and Junior counsel and solicitors.  Pegasus
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31 May: The situation the judge explains away in paragraph 45 and 46 ignores the facts that things changed with the arrest of the Iraqis. They were suspected of involvement in killing our soldiers. The danger of revenge must have been obvious to any officer or NCO let alone a CO. Difficult to believe no one checked to see what was going on. What a unit.  Colin
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31 May: I want to reply to Lewis. I have been referring to the prosecution accounts in opening, linked from Aspals as my main source of information.
The information that the CO was present at the hotel comes from the prosecution opening, on day 1, page 97, line 23, where it is said "That raid was orchestrated and indeed overseen quite properly by Colonel Mendonca. The operation itself was Code named Operation Salerno". Then again, on day 4, p58, it was said "Operation Salerno was in fact planned by Colonel Mendonca", but if you say that he wasn't there then I cant dispute that. You say the brigade commander was there afterwards. It seems strange that such an important operation should go down without the CO being there especially when the brigadier is hanging around afterwards. Hopefully, an inquiry will be able to ask the awkward questions that evidence rules prevent. Irrespective of the CO's presence at the hotel I still fail to see how, possessed with all the information he had, it could be possibly said that there wasn't a prima facie case of negligence (even on the basis of just his admissions to the police and the principle of command responsibility). The opening makes it plain that officers are taught on the command and staff course at Sandhurst that the 5 techniques in the Ireland case are not to be used. So I wonder why were they being used by 1QLR with the CO's knowledge.So, perhaps if the Crown had stuck with the original case they pleaded, or charged the colonel with a war crime, they might have at least got beyond half time. Is that in fact what you are saying?
The allegation presented by the Crown in opening against the CO was "When commanding officer 1 Queen's Lancashire Regiment negligently performed his duty by failing to take such steps as were reasonable in all the circumstances to ensure that Iraqi civilians being held at the temporary holding centre under his command were not ill treated as his duty required." Seems pretty straight forward. Isn't that what we're discussing. Was this allegation changed?
The case put in opening was that by his own admission, he was aware that stress positions and deprivation of sleep were used as part of the conditioning process for Iraqi civilians or detainees under going tactical questioning process. He never questioned it. The Crown suggested he should have done. (day 4, page 44). The prosecutor said that Colonel Mendonca understandably recognised that the pressures, provocation, and the awful conditions a soldier faced can of course lead a soldier to "cross the line". In other words, for feelings to get the better of him, Colonel Mendonca foresaw at least the risk of soldiers acting "disrespectfully" or out of order in relation to Iraqi civilians. That was apparently conceded in a letter written to an army brigadier. Then include the fact that these soldiers believed the prisoners were involved in the murders of RMP and captain Jones and that the brigadier had spoken to him about the misbehaviours of his troops towards Iraqi civilians and the conditions for abuse are ripe. As CO he only checked the detainees on one occasion, but went on to extend the deadline for detention beyond the permitted 14 hours (all this from day 5). As the Crown pointed out, it must have been obvious that the longer the detainees were held the greater the risk of ill-treatment. Mr Musa died after 36 hours in captivity. The prosecution made the point that the remarkable feature of the case was the openness with which Cpl Payne carried out the ill-treatment of the detainees.
I accept that all of this comes from the prosecution opening but as I said earlier, just on these points there looks like a prima facie case.I am not arguing guilt or innocence, purely whether there was sufficient to go beyond half-time. On the question of the judge including or not including informaiton, I did notice that he got one thing wrong. He said the Crown's case was no allegation of anything untoward before 13th September 2003. That must be wrong. The Crown mentioned in opening the warning by the brigadier.
Lastly, I do not think the explanation provided by the judge in para 42, about Colonel Mendonca being entitled to say that he did satisfy himself that the conditioning process, as he understood it, under Major Royce did not contravene the Geneva Conventions or the Laws of Armed Conflict stands up to scrutiny (even though I admit I havent seen a record of his evidence). If the CO was aware from his officer training that the 5 techniques were contrary to law, does it matter what anybody told him to the contrary? I would have thought that put him on a duty to inquire about such an important matter.
These are all points for an inquiry to look into and hopefully get to the bottom of. So I hope there will be an inquiry.   Scipio
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Scipio, you make some interesting points, but we should be wary of treating opening statements as evidence in the case. Lewis was there and played an integral part in the defence of one of the defendants, so his knowledge of the evidence is better than ours. We cannot possibly reproduce months of examination in chief and cross examination and dissect it on these pages (I don't have the either the source documents or the storage capacity!). Whether or not there was a prima facie case, it is too late to do anything about it. I'm sure that if the Crown felt it was worth having a go they would have. They were a very high calibre team.    Aspals
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30 May: its a pity colonel Mercer wasnt running the the QLR. there wouldve been no case cos the abuse wouldnt have happened. i vote that all commanding officers should be army lawyers.  pete
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I am sure the Director Army Legal Services will be grateful for your suggestion, Pete.   Aspals
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30 May: So the state of the evidence was that the CO did not know what conditioning was as Major Royce did not discuss the elements of his system of conditioning with Colonel Mendonca? What about all the other evidence that was available that should have put him on notice that he needed to make sure these blokes were not mistreated. Such as the deaths of other UK soldiers, the warnings the CO had been given about his soldiers behavior and the screaming and shouting going on that was reported in the press. Most folk would guess that something a bit odd was going on especially if your the CO.   Will
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30 May: Thanks Lewis for getting back on my question. Clearly you know much more about this case than anyone posting here, but the judge's rational is a bit daft isn't it. Basically he says that because a Major reassured the CO that the conditioning process didn't breach the Genva Conventions it was OK and the CO accepted that, even though he must have known or believed from his training that theese techniques were unlawful. Its a bit like saying the Maj told him that brigade said it was OK to beat the prisoners up. You dont need a law degree to know that cant be right. Do you obey that instruction even though you know or believe it to be wrong? We are talking about the the treatment of human beings, not inanimate objects.
What is interesting to me in all this is that it was a high court judge that kicked out the case at half time. I cannot see a foreign victim ever getting justice before a court martial. Cases like this must in future be tried by the international criminal court to remove any suggestion we are protecting our system and reputation by burying unpleasant cases.  Tess
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30 May: In relation to the comments of Scipio, I would ask that he very carefully reads the judge's half-time ruling. It sets out in far more detail than I can within these e-mails. It is an extremely carefully worded synopsis of the evidence in the case and needs detailed reading to get an understanding of the way the evidence came out at trial. The judge had taken some time to prepare this judgement, as it was on the wording of this judgement that the Crown would have based their appeal had they decided to pursue it.
Scipio says he has heard that the CO was present at the hotel and asks why nothing was said about it in the ruling? I think that might be because he wasn't there! I can't recall it being said, which is probably why the judge didn't mention it and neither did the BBC - check your sources. The brigade commander WAS at the hotel after the arrests had taken place and the search was going on, and he gave evidence to that effect. Was that the relevant senior officer perhaps?
You will see from the case opening, and set out in the ruling, that the Crown had given particulars of the elements of the charges of negligence that it intended to prove. No evidence was adduced at court to support any of the particulars of negligence alleged. To save everyone the trouble of looking it up I will insert paragraph 62 of the ruling below:
".....62. I have taken the Crown at its word that its case against Colonel Mendonca is as I have summarised it in paragraphs 47, 49 and 50 above: It is a new and unpleaded case which on the evidence cannot succeed. This case is remarkable, as Mr Langdale QC submits and I agree, for the fact that no witness has given any evidence to the effect that Colonel Mendonca did anything he should not have done or that Colonel Mendonca failed to do something he should have done in relation to the charge against him. It is my conclusion that the Crown's allegation set out in the charge, as well as the Particulars of Negligence, have no underlying evidence to support them. "
Having read the above, is anybody still having difficulties understanding why the case against him collapsed at half-time? If no evidence to prove the case, it must fall.
The careful study of the document will also answer the question of Tess as to why the prosecution did not appeal the ruling. You could of course ask the Attorney General, but I think he is a little busy at the moment answering other questions. I heard him today on the radio in relation to the matters discussed in the article in the Independent today (carried elsewhere on this site).
The comment by Aspals on the conduct of Lt Col Mercer is well made, those commentators wondering about the training of officers and commanders generally, and the quality of legal advice available to the operational troops need to look at this issue in depth. The evidence disclosed, both in this trial and in earlier ones, that Lt Col Mercer took his duties very seriously and raised them fearlessly with the chain of command. It was quite clear that his advice was, at times, most unwelcome in the higher formation headquarters, and the exchange of e-mails between the various headquarters was examined at length in this trial. As a lawyer, I have no difficulty in understanding and adopting the position of advising a client how he may conduct himself so as to exploit to the maximum his legal opportunity within the legislation. Equally you must be prepared to speak out when you consider that the law will be broken. When your duty as legal adviser to the operational divisional commander is such that you have to advise him that a proposed fire mission might render him liable to prosecution as a war criminal if he approves it, you need to be sure of your facts and the law and be of a certain robust constitution!
No doubt the legal officers who have worked in operational law appointments could contribute more to this discussion, but there is no doubt in my mind that this is a difficult task in operational circumstances where harsh decisions have to be made at short notice and with limited information. Iam afraid that the armchair warrior, or indeed the Whitehall warrior, may not always have the same view as the man at the front line. Experience says that you must always allow for the circumstances under which the man on the ground is making the decisions (again I am afraid an old Northern Ireland lesson that seems from time to time to be forgotten). This is particularly so when reviewing those decisions with perfect hindsight after the event. The newspaper article seemed to cover comprehensively that the legal adviser at the front line seems to have given advice that has stood the test of time. I am sure that that was not well received by the more senior legal advisers and officers well removed from the action, and whose advice did not survive the same level of scrutiny. Unfortunately it is often the armchair or Whitehall warrior who subsequently writes your annual confidential report or sits on the promotion board!  Lewis Cherry  www.lewischerry.com
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29 May: Tess is completely right that we have no place preaching human rights observance to others when we have behaved so hypocritically. The Iraqis were our prisoners, in our custody, not enemies on a battle field.  Colin
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29 May: Seems to me there has to be a public inquiry into this case which should also look at training of soldiers, officers, lawyers and commanders. If our commanders were acting in breach of international law and treating prisoners inhumanely then the public are entitled to know why. The daft thing that happened in this case is that the senior people were acquitted and the junior man was convicted. Seems like the inverse of command responsibility, let the little man take the rap. Brilliant.   Tess
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I don't have full transcripts, but I have some more background. In opening its case on Monday, 25th September 2006, the Crown told the Court that prior to the incident on 14th-15th September 2003, the Brigade Commander had had occasion to speak to the CO on more than one occasion of the risk of ill-treatment of detainees, as soldiers of 1 QLR had acted "unnecessarily and robustly, or overrobustly, towards Iraqi civilians". I don't know, however, if the brigadier came up to proof. I assume he did. The Crown submitted that "Colonel Mendonca must at least have foreseen the risk of ill-treatment in relation to these detainees". By his ruling, the judge clearly disagreed.
Added, 29th May: readers might be interested in the article in today's Independent, which shows that it was a senior Army lawyer, Lt Col Nicholas Mercer, who was urging higher standards of treatment of Iraqis than the Attorney General. Lt Col Mercer was in Iraq until about mid-2003. So, I hope not all army lawyers are treated with the same scepticism by Scipio.   Aspals
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28 May: this all sounds a bit odd. Ive a couple of questions that Lewis can probably answer easily. were the arrests of the iraqis linked in any way with the death of the qlr captain? if the were was the CO and his officers and senior ranks aware of the link - from what you say he probably was? If that was the case its a bit unusual to leave prisoners in the hands of the capturing unit especially where its the same one as the dead soldier, where theres an obvious potential for revenge. prisoners should be be moved on to the int people for questioning. if that didnt happen here and prisoners were held by the capturing troops it explains how they came to be given a good working over. ianal but would have thought unit command had some explaining to do in those circumstances. can Lewis say what explanations were given by the co for not checking what was happening to the iraqis the following morning.   pete
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28 May: The messages from Lewis, Scipio and Aspals really do show that UK talks big about international human rights obligations, the quality of British troops and the quality of British justice in order to impress the world but when it comes down to it, we're no better than many of the countries whose human rights records we condemn.
The law on command responsibility which Aspals set out was very interesting and it is a mystery why the case didn't go beyond halftime. Does anyone know why the prosecution didn't appeal the ruling?  Tess
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28 May: The more you hear about this case and the way it was handled the more amazed you become. I can't believe that we were in breach of obligations we committed to back in 72. What sort of training do our officers get? Aren't they taught these principles? Then again, did anyone expect a case against these soldiers specially a decorated senior officer, to really go the distance whatever the state of the evidence? I can't see any others being brought to trial. What's the point?
Lewis mentions the civil case spearheaded by Phil Shiner and I agre it doesn't look like MOD has a defence but the fact still remains that a man died and no one has been brought to account for it.   Will
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27 May: I haven't commented before now as its taken some time to read through and understand the half-time ruling. With all the information now coming to light it is more difficult to understand how the judge found there was no case to answer against the CO. Lewis has clarified an important point that the CO new about the arrests and the operation. I've since heard that he was actually at the hotel when the arrests were made – something the BBC documentary didn't refer to. Interestingly enough, neither did the judge in his ruling. Why was that I wonder? Can Lewis say if theres a clue as to why the CO's knowledge of the operation and presence at the arrests should have been omitted? It sounds like pretty crucial evidence to consider.
As the judge only has to decide at half time whether or not theres a prima facie case to go before the jury, I am trying to understand the ruling he made that no such case existed and why he failed to mention crucial evidence linking the CO with the operation. Although Mendonca relied on the competence of his subordinate, it is very relevant that the Joint Warfare Publication and Army Doctrine Publication Volume 2 (Command), referred to by the judge, says "... He [a CO] may delegate his responsibilities, including [prisoner of war] handling, but not divest himself of them. He must ensure that his subordinates comply with the law however dispersed his area of operations ..." Brigadier Scott-Bowden is quoted as saying "... I would expect the CO to satisfy himself that all was in order and then subsequently visit when he felt it was appropriate. I would not expect him personally to visit each detainee ..."
What is clear, irrespective of the alleged and bizarre legal advice to the contrary, is that the techniques used by 1 QLR were "manifestly illegal" and had been since 1972. If the CO was worried enough to seek legal advice about them and then received advice that they were OK, surely he should have double checked. The interrogations were supposedly to extract information from the prisoners. Didnt he even inquire about how that was going? The judge didn't seem to pass comment on the COs attitude to these clearly unlawful activities.
The inquiry thats being set up should also examine the roles of army legal advisers what sort of training they have and how advice like that allegedly given can come about. How can lawyers give advice that is not only contrary to government policy but also contrary to the law ? Do lawyers give advice that commanders want to hear or what they need to hear? Seems to me there's a big difference between the two.
As for command responsibility, the judge's approach was novel. Did he truly understand what it means, I wonder. You only have to look at the classic case of Yamashita to see my point. Yamashita's troops were raping Phillipina women and he claimed not to know anything about it but he was found guilty on the basis that he should have known what was going on because of reports received. In this case, the CO was aware of the arrests, the reasons for the arrests and that his prisoners were being interrogated using illegal techniques. That would put most reasonable people on inquiry to ensure that they were properly treated and that they were visited regularly either by him or senior officers to make sure their welfare was ok. As I say that looks like a prima facie case to get beyond half-time. What is also worrying is that the judge held the view that having regard to the Brigade sanctioning of the plainly illegal conditioning process that Colonel Mendonca was entitled to rely upon it even though he was concerned enough to have sought Brigade advice. Superior orders being relied on by a senior officer – is blind obedience now a defence?
Thanks Aspals for posting the ruling. It was really interesting and valuable.   Scipio
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Thank you for a very interesting posting. It has taken me a while to post it as I wanted to be able to research the position thoroughly. What was also omitted from the judge's consideration of the evidence was the fact that the transcript of the trial shows that the CO had breached Brigade policy, which was to the effect that detainees could only be held for 14 hours before being sent to the Theatre Internment Facility. He actually authorised detention beyond 14 hrs without stating an end time. There was no evidence that I could find of his inquiring the following morning of (a) the welfare of the detainees, (b) whether they were still in the unit and, if so (c) why and (d) when they were to be moved. Oh, of course, as Scipio points out, a question or two about the intelligence gathered from them might also not have been out of place.
As for command responsibility, it has to be remembered that the charge he faced was one of military neglect, not the more serious charge under the ICC Act, which closely resembles the test in the Yamashita case. The modern test is under s.65 of the ICC Act 2001 [A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be) his effective authority and control, as a result of his failure to exercise control properly over such forces where – (a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences] means that the test of command is "effective control" over a subordinate to prevent and punish criminal conduct.

Can I clarify, it would be quite wrong for contributors here to comment on the guilt or innocence of persons acquitted. The acquittals resolve that issue.
That the case continues to cause justifiable disquiet is apparent from today's press article that the Parliamentary Joint Committee on Human Rights has written to the MoD asking it to reconcile what appear to be glaring differences between the department's official line on what is permissible and evidence given at the recent court martial of seven British soldiers.
Following the Report of the Committee of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism 1972 (this was as a result of the case of Ireland v. United Kingdom, (5310/71) [1978] ECHR 1 (lodged in 1971 but eventually decided 18 January 1978, and dealing with "the five techniques", namely, wall-standing; hooding; subjection to noise; deprivation of sleep; deprivation of food and drink) assurances were given to Parliament by the then Prime Minister Edward Heath on the same day (March 2, 1972 when he said,
"[The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques ... will not be used in future as an aid to interrogation... The statement that I have made covers all future circumstances". (quoted at §§ 101 and 135 of the judgment).
At the hearing before the European Court of Human Rights, on 8 February 1977, the United Kingdom Attorney-General made the following declaration:
"The Government of the United Kingdom have considered the question of the use of the ‘five techniques' with very great care and with particular regard to Article 3 (art. 3) of the Convention. They now give this unqualified undertaking, that the ‘five techniques' will not in any circumstances be reintroduced as an aid to interrogation."
There is a clear need to understand how and why the alleged policy of British troops in Iraq was at direct odds with the government's unequivocal position and also in breach of the law as set out in the Ireland case. Which officers sanctioned such a policy and upon whose advice.    Aspals
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24 May: Again my apologies for the time taken to respond, as I have been overseas assisting soldiers and dealing with trials for the last three weeks. In response to the various follow-up messages I would say:
In answer to Paul, as Aspals has already said they are out of time to appeal against leniency of the sentence. In relation to the terminating ruling at half-time, this only came into the military trial system last year bringing it into line with the civilian court system. In fact at the end of the half-time submissions in this trial when the judge indicated his findings on each of the charges, the prosecution took 24 hours to consider their position in relation to an appeal at this point. This particular point has not been made public as far as I am aware which is probably why some of the contributors are querying what happened. It was an interesting point for the practitioners present at court, because as far as I was aware the power to appeal has not yet been exercised in any trial (before somebody jumps on the bandwagon - this is not a criticism, there have to be good legal grounds of appeal).
There was of necessity a news blackout at this point, until the Crown indicated that an appeal would not be launched against the terminating rulings. (If you need to know why a news blackout, read the appropriate rules which are elsewhere on this site to find out the implication of a Crown application.) As a side note, the press had to be carefully briefed because they had already been made aware that the judgement would be given that day. As I knew that the case against my client was not going to be appealed, at that point I gave an interview to BFBS so that they could have the interview edited and "in the can" for broadcast the next day after the embargo was lifted. I then spoke to the BBC and others the following day after the formal announcement, and a very alert "continuity spotter" told me the following week they noticed I was wearing two different shirts for the interviews, now you know why!!
In relation to the various posts asking whether the CO knew about the arrests and the operation. Yes of course he did, this was one of the two brigade level operations carried out by his battle group over the 36 hours that I have already mentioned. He was aware that arrests had been made and had been briefed on certain intelligence issues, and that TQ was taking place. A system was in place for the internees detention to be reviewed periodically, headed up by a Major within the unit. This was a matter extensively scrutinised during the trial as one of the issues being tried was how much the Commanding Officer could properly delegate, and how much oversight he should retain particularly when he is trying to manage ongoing operations.
In relation to the point by Will, again responded to by Aspals, I have to say that having read all the statements that I can understand why all the individuals charged were on trial. You and others have perhaps misunderstood what I meant by "that is more to do with who was charged and put on trial" in my original post. The charging standards were applied to those who were charged, I suspect that the difficulty for the prosecution was the lack of evidence against other individuals that they possibly would have wished to charge. If they do not have the evidence, they cannot charge - so those individuals drop out of the criminal process (but may still remain subject to AGAI action if appropriate after the forthcoming administrative investigation). That was the point of my final paragraph in the original post. There were a number of other individuals who were named, and against whom there probably was perceived to be enough evidence for charges of battery only. In my opinion the difficulty which arises for the prosecution at this point is one of deciding how many people to join in the indictment without the case becoming unwieldy. We already had seven individuals charged with offences ranging from war crimes and manslaughter through to assault occasioning ABH and military charges of negligently performing a duty. There could possibly have been another two or three negligence charges and four or five assault charges. If the number of defendants had doubled, with the majority of the charges then at the lower end of the spectrum, the nature and duration of the potential trial would have been a totally different dynamic.
These are not easy decisions and not lightly made. You have to remember that you are looking at the case at the end, when all the evidence has been extensively dissected and pored over in fine detail. The precise judgement of hindsight is not available to the prosecutor at the point when he directs charges, you have to judge it on your experience and the information available to you at the time. The old military adage that even a good plan seldom survives first contact with the enemy is one that criminal practitioners in the field of military law keep very close to their hearts for good reason.
In relation to civil proceedings, that of course is a totally different arena. Mr Shiner is acting for a number of the Iraqi detainees, and quite sensibly had a representative at court taking notes daily. In my opinion the detainees will have a good claim against the MoD. Simplifying things somewhat, to succeed in a tort claim they have to show that there was a duty of care owed to them, that the MoD and its servants and agents were in breach of that duty of care, and that they sustained damage. As a soldier has pleaded guilty and been convicted of war crimes against these detainees held in military custody, I cannot imagine how the MoD could successfully mount a defence to disprove the breach of duty of care. The damage caused to each individual and the consequent compensation will presumably be the only matter in dispute. If what happened to any of these detainees had happened to a soldier in detention, the MoD would be paying out large sums in damages, I am quite sure they will be paying it to most of these detainees. It is quite likely that the army investigation announced by the CGS will be enquiring into matters relating to the civil claims outstanding against the MoD. Remember that the investigation will be looking at "the service test" for AGAI action.   Lewis Cherry  www.lewischerry.com
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Lewis, thank you for taking the time to provide a most detailed and helpful clarification of the issues. This is of great value to all of us reading and posting to this site on the matter of the trial, as you were there and, more importantly, through your professional role, had access to all the evidence presented on paper and then heard that evidence as given on oath.    Aspals
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16 May: According to the Mail, it looks like the army has given up on court martial as an effective way of dealing with its soldiers and officers. Major James Faux is accused of neglecting to ensure his soldiers' good conduct in that they beat up some Iraqis "they were beaten senseless with batons, boots and fists" (sound familiar?). After the recent trial over the death of the Iraqi Musa, who can blame them. Its own tribunals cant maintain discipline among its soldiers and provide justice for victims.   Tess
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14 May: I asked a few days ago if the prosecution could appeal the sentence and Aspals said they could. Does anyone know why they didnt? Could the prosecution appeal the acquittals of the men let off at the end of the prosecution case?   Paul
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To answer Paul, the prosecution appeal on a sentence can only be on the basis that it is unduly lenient. That is a matter for them to consider, but I doubt such an appeal will follow. As for the terminating ruling at half time, the prosecution could have appealed that had they thought there was any merit in doing so. Had they thought so, the Attorney General would have had to consent as it is his reference to the CMAC, after all. Anyway, they are now well out of time.   Aspals
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14 May: Linking to Sloop's message. I think your probably talking about the drama documentary of the two soldiers abusing Iraqis and one killd himself. I saw that show but I think that the others may be talking about the Jeremy Vine program on TV.  Lorna.
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14 May: (Sent 13th) I was referring to the Panorama program introduced by Jeremy Vine where SIB, Phil Shiner, some Iraqi victims and a defence lawyer were intereviewed.   Tess
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10 May: In respect of recent posts concerning the Bulford trial and the BBC documentary, please remember that the so called domumentary was a docudrama and made up of various reports and allegations. It was not meant to be a description of what happened at 1QLR.
Also, in respect of Lewis's thoughtful post, the paper waste at the end of the trial (statements, plans, photos etc) weighed two and a half tons.  Sloop
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10 May: This is an unusual situation Geo Girl. Normally it is the service that wants to kick the serviceman out and the serviceman who wants to stay in. in your case it is the other way round. I'm not sure of the maths, but I think it is actually cheaper to discharge you than pay your salary and full capitation. To be frank, I don't think that there is much you can do if they want to hold you to your period of Service unless it can be shown, supported by strong medical evidence, that you really are unfit for service and that their decision to retain you in service is unreasonable to the point of being irational. I don't know how much time you have left to serve but going down the s.180 redress route is notoriously lengthy. Civil proceedings are unlikely to be any quicker but your civilian lawyer will advise you on that no doubt.  Milaw
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10 May: (sent on 9th)You bet your life the officers and CO would have known about it. Interesting though that the beeb didn't mention anything about the officers or senior ranks aside from those on trial and the officer Rogers.   Colin
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10 May: (sent on 9th)Its hard to believe that the APA would have charged all these people without there being sufficient evidence. If as has been suggested there was a difference between what people said on oath and what they said in their statements then someone has to get to the bottom of why that was so and the witnesses who kept saying they couldn't remember should be interviewed by the police. It sounds like a case of attempting to pervert justice.   Will
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Will, it is important to state that the evidence was scrutinised very carefully by senior APA lawyers and senior counsel of great experience and standing before the case was directed for trial. The charges that were arrived at were based upon the available evidence which meant, in the case of the service witnesses, what they had stated in their witness statements. It would be extreme folly to take a case to trial on the basis of witness evidence which was to the effect that witnesses could not remember what had happened. The fact that acquittals resulted does not mean that the case was wrongly brought. As for those with regimental amnesia, we shall have to wait and see what happens.    Aspals
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8 May: Thanks for your reply. I have asked and have been advised that I can PVR if I want to, but that they will not medically discharge me at this time as it is cheaper for me to serve my time left (not a formal reply). I am going to medical board soon and I will then receive a formal answer. I am hoping that they will see reason, but I am in the process of compiling a legal case should need to take a stronger stance on the matter.  Geo-Girl .
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8 May: I've just seen Geo Girl's post and the reply by Tess. Unfortunately, finding other case precedents will be difficult as this sort of case is directly handled by the MOD lawyers who tend to keep them pretty quiet. Most settle out of court. Your claim for damages for your injury sounds a very strong one. Who knows what the reasons are for keeping you in service when you are, as you say, no longer fit to do your job, be posted or get promoted. Have you asked the air force why they are keeping you on?  Milaw
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7 May: I watched the documentary about the case and there was no mention of the CO being involved in the arrests just the young lt, but from my own experience in Ireland, ops like the one here wouldnt go down without being briefed to the co and getting his ok.  Pete
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6 May: theres a difference between what people might say to the police when the arent on oath and what they say in court when they are. phil shiner is acting for the iraqis in the case against the government so take his views with a pinch of salt. lewis was there at the court martial and knows what hes talking about. listen to the man.  Pete
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6 May: Kantfan makes a good point about the standards of proof. Proving a case to the civil standard is a lot easier and just depends upon whether the event alleged probably happened.   Will
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6 May: Phil Shiner summed it all up when he was interviewed by the beeb in the Jeremy Vine documentary on the trial. He called it "a combination of deliberate cover-up and gross incompetence and a system that turns in on itself and deliberately sweeps things under the carpet so that the public can't see what's gone wrong". The army can have as many inquiries and investigations as it wants. If all this is done internally there cant be any public confidence that justice will be done. As for screaminig and the like, that same documentary had a soldier saying there was massive amounts of screaming, abuse being directed at people and then in between that, groans and screams from other men, and these men didn't sound like they were in good shape whatsoever. He said that what he saw in the cell was was torture. Someone heard those screams then above the sound of generators.   Tess
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6 May: Will. The person who will have at least been aware of the mission to arrest the Iraqis even if he didnt master mind it was the CO. No major op goes on in a unit without the CO knowing about it.   Colin
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6 May: lewis' full answer explains a lot about the case and usefully points out that the prosecution simply put the wrong people on trial. the people who shouldve been in the frame are the guard who took over in the evening who lewis says werent tried. what a huge waste of public money. thanksnow we know how it was and why the acquittals were made.   Pete
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6 May: So the CO called in the police. What else could he do with a dead prisoner's body in his unit.   Tess
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6 May: I found Lewis' reply very interesting. I did as he recommended and looked up the burden of proof and the standard of proof on google and found an internet site called Forensicmed which sets out the definintions. As I understand the situation, Lewis is saying that the acquittals settle everything and that no further proceedings can or will be taken against those acquitted and that explains why they have nothing to fear from an internal inquiry. He suggests that the people who may be worried are those who weren't tried but who were there at the prison. If that is a correct summary of what he is saying then I put forward a view arguing why further civil proceedings can be taken and I do that fully appreciating that he has first hand knowledge of the case and more experience in the law than me as a student.
The army statement reported in the Guardian says that the intended inquiry will include the ones tried and include the commander officer. My second point is that as Lewis says the criminal trial looks for a higher standard of proof than a civil trial. I don't think it follows that just because someone is acquitted of a crime, requiring proof to that higher standard, that a civil action requiring a lower standard of proof would fail. It might be different the other way round. The internal inquiry and non criminal proceedings would I guess use that civil standard. Perhaps thats why some people here think that those acquitted might have something to worry about from an internal inquiry requiring a lower standard of proof.
Whatever went on it is hard to believe that no one saw or heard any mistreatment to the prisoners over the many hours they were held and that no officers inspected the prisoners. That is my understanding of the points discussed here.  Kantfan, (true identity withheld on request)
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6 May: What I don't understand from Lewis' explanation is who ordered the arrest of the Iraqis and why? Was it because they were thought to be involved in the deaths of the QLR officer? Didnt the CO know anything about the arrests or that these folk were on his base? I can't believe that all this happened without the CO being aware that the Iraqis were being held by his unit.  Will
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