I got to the Wired piece through this from congressmatters.com blog.

When bad news breaks it has become almost routine for those at the top to disavow all knowledge and let the hammer come down on those well down in the hierarchy. The pattern showed up again twice this week, and is now so common as to be almost standardized. Ackerman’s piece sounds a similar warning. Although command responsibility has not existed in practice for the military for quite a while (the aftermath of Abu Ghraib was perfectly consistent with how military higher-ups evaded blame for the Tiger Force and My Lai atrocities decades earlier), there is now enough of a history for an attentive observer like Ackerman to outline just how the probable cover up will proceed, which is a remarkable development. Maybe the public has become so weary (via) of America’s endless, pointless conflicts that even war crimes can, when massaged with some rote denials, pass by with barely a ripple.

Media access.

Has the Army introduced an issue into the Stryker Brigade cases going to Article 32, UCMJ, hearing over the next few weeks. The New York Times reports. The hearings will be at Joint Base Lewis-McChord. “The case against Specialist Morlock is the first of the five to move to what the military calls an Article 32 hearing, in which the Army determines formal charges.”

A top Army official has ordered that images of dead or wounded “casualties or detainees” may not be made public during hearings involving an American soldier accused of murdering three Afghan civilians during a deployment to Afghanistan this year. “I have determined that the risk of potential prejudice to the substantive rights of the accused, as well as negative impact on the reputation of the armed forces, associated with the potential public dissemination of these images outweighs minimal hardship upon the accused as a result of this order,” wrote Colonel Huggins.

The memorandum does not appear to address the media issue. See this post for a discussion of media access to Article 32, UCMJ, hearings in the MAJ Hasan murder case at Fort Hood. As the NYT reports,

Questions have been raised over the Army’s handling of the cases.

We granted review in this Abu Ghraib case to determine whether the military judge abused his discretion in (1) refusing to compel the Government to produce certain memoranda requested by the defense; (2) excluding the testimony of, and an e-mail from, Major Ponce; and (3) limiting the testimony of a defense expert witness. We hold that the military judge did not abuse his discretion in any of these decisions and affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

Charles Graner was a manipulative sadist, Ivan Frederick sincerely penitent and Lynndie England an infatuated follower who got more notice than her role deserved, according to the authors of a new book on the Abu Ghraib prison abuse scandal. Christopher Graveline helped prosecute the defendants and investigator Michael Clemens assisted the prosecution team. They conclude, not surprisingly, that military justice was served by the criminal convictions of 11 low-ranking soldiers and the nonjudicial punishment of a handful of officers. But the authors of “The Secrets of Abu Ghraib Revealed: American Soldiers on Trial” also ponder the grey area between the soldiers’ actions and their commanders’ intentions — the source of questions still dogging members of the George W. Bush administration and complicating America’s international relations more than six years after photographs of naked, humiliated and terrified Abu Ghraib detainees surfaced.

Christopher Graveline, The Secrets of Abu Ghraib Revealed: American Soldiers on Trial, Potomac Books, 2010.

Here is a link to Graveline’s Washington Post OpEd piece.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

The appellant also admitted taking photographs and taking other actions over a period of time.

Smith involved allegations of error that the military judge failed to give proper instructions on a defense of obedience to orders. The case is valuable for the question of a judge’s sua sponte duty to instruct and the amount of evidence necessary to require an instruction.

“Obedience to lawful orders” is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised. See United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d); R.C.M. 920(e)(3). “The test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.” Davis, 53 M.J. at 205. A lawful order instruction would have been required only if the order given had been lawful or could reasonably have been believed to be lawful. See United States v. Calley, 22 C.M.A. 534, 544, 48 C.M.R. 19, 29 (1973).

Both cases have a good discussion of maltreatment and the standard of proof and type of evidence necessary for conviction. Smith holds that a detainee, while not himself subject to the UCMJ in traditional terms as a civilian, is “subject to the orders” of the accused. CAAF cited to the various Geneva Conventions to support this proposition.

Judge Efron notes an important point for both sides at trial, but most importantly the defense.

Appellant raises claims now that he did not make at trial. The record contains no instructions proposed by the Appellant. Appellant did not object to the military judge’s instructions as given.

As I frequently say, many a good appellate issue is lost because the trial defense counsel did not make a record. There are times when strategy may require doing or not doing something at trial, for example an objection. Not objecting potentially waives the issue absent plain error. That’s fine and consistent with the principle that you want to win at trial and do not litigate for appeal. But when it comes to instructions, that’s an area for action and creativity.