Closure Of Soldier Hearing Illegal

[USMCRET6391]

Associated Press
February 24, 2005

DENVER - An Army officer illegally closed a December hearing on the alleged suffocation death of an Iraqi general and must keep open as much of the rest of the hearing as possible, a military appeals court ruled Wednesday.

A three-judge panel of the U.S. Army Court of Criminal Appeals in Arlington, Va., said Capt. Robert Ayers made an "ill-considered, overbroad and clearly erroneous" decision to close the hearing at Fort Carson to avoid releasing classified information.

The judges ordered him to release an edited version of the 285-page transcript to The Denver Post, which appealed the closure.

The panel, which ordered a halt to the hearing Dec. 3, the day after it began, said the hearing could resume, but ordered Ayers to close remaining portions of the hearing only if he determines expected testimony would reveal classified information.

Testimony from two witnesses did not involve classified information, and one witness testified over a nonsecure telephone line and therefore would have been prohibited from discussing classified material, the ruling said.

Some testimony might have been so intertwined with classified matters as to justify closure. "But that should have been the exception, not the rule," the ruling said.

Attorney Steve Zansberg, who represented the newspaper, hailed the decision.

"I'm gratified that this court issued I think a very clear ruling and directive that covers not only this proceeding when it resumes but all future proceedings at least for the Army," he said.

Fort Carson spokesman Lt. Col. David Johnson said it was too soon to tell when the hearing might resume, and when an edited version of the transcript could be released.

Four soldiers are charged with murder and dereliction of duty in the death of Maj. Gen. Abed Mowhoush during an interrogation at Qaim, Iraq, on Nov. 26, 2003.

Chief Warrant Officer Jefferson L. Williams, Chief Warrant Officer Lewis Welshofer Jr., Sgt. 1st Class William J. Sommer and Spc. Jerry L. Loper allegedly were questioning Mowhoush because he was suspected of funding insurgent attacks on U.S. forces. They could get life in prison without parole if convicted.

The hearing that was closed was for Williams, Loper and Sommer; Welshofer's hearing will be held later.

At least 19 prisoner deaths in Iraq and Afghanistan have been investigated as homicides by the military; eight were determined to be justified killings of an escaping or dangerously violent prisoner.