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Lawyer Cites Bush Ruling in Marine Prisoner Abuse Case

August 18, 2004|Tony Perry | Times Staff Writer

CAMP PENDLETON — A Marine Corps officer accused of dereliction of duty in the death of an Iraqi prisoner cannot be convicted of violating the Geneva Convention, because President Bush has ruled the convention's protections do not apply to terrorists, the Marine's lawyer argued in court here Tuesday.

Keith Higgins, attorney for Maj. Clarke Paulus, sought to introduce as evidence legal opinions written by lawyers for the White House, Department of Justice and Department of Defense that assert that "non-state combatants" do not enjoy the guarantee of humane treatment covered by the Geneva Convention.

Col. Robert Chester, the judge, refused Higgins' request and also his attempt to call as a witness an assistant U.S. attorney general who wrote one of the opinions.

But Chester ruled that Higgins can make the argument involving the Geneva Convention to officers sitting as jurors in Paulus' court-martial, set to begin next month.

Paulus is accused of dereliction of duty in the death of suspected Baath Party member Nagem Sadoon Hatab at the Whitehorse base in Iraq last year. Hatab, one of the first Iraqis to die in U.S. custody, had been arrested as a possible suspect in the ambush of the Army convoy that included Pvt. Jessica Lynch.

Paulus allegedly gave an order allowing Marines to drag Hatab by his neck into a holding pen; an autopsy suggested Hatab, 52, slowly suffocated from a broken bone in his neck after being beaten into near unconsciousness.

The legal opinions, accepted by Bush, said that the Geneva Convention apply only to soldiers and other fighters aligned with a legitimate government. Others are "unlawful combatants," the opinions said.

"Hatab was, at least, a non-state militia member and, at worst, a terrorist," Higgins told Chester.

In response, Chester pointed out that the opinions dealt with Taliban and Al Qaeda fighters in Afghanistan and said nothing about Iraq.

Still, Higgins said it is logical that the same ruling should apply to Iraq, particularly to fighters who were not part of the Iraqi army.

"Our commander in chief has determined ... that Taliban and Al Qaeda are not lawful combatants," Higgins argued. "With that interpretation of the treaty set in stone, we can take that precedent back to Iraq and say Mr. Hatab is an unlawful combatant."

Paulus, who commanded the detention center at the Whitehorse base outside Nasiriyah, has opted to have his case decided by a jury instead of the judge.

Maj. Michael Froeder and Sgt. Gary Pittman also face charges in the death of Hatab and the abuse of other prisoners, including an Iraqi sheik.

Froeder, like Paulus, faces dereliction of duty charges for not ensuring that Hatab received better medical care and for not preventing enlisted Marines from punching and kicking Hatab and other prisoners.

Pittman is charged with brutality for allegedly kicking and hitting Hatab, the sheik and other prisoners. Other Marine guards, who were given immunity, will testify for the prosecution at Pittman's court-martial set to begin here next week.

The courts-martial promise to do something that the military abhors: air dirty linen in public. Among other things, defense attorneys have noted that a key prosecution witness tried to get out of the Marine Corps as a conscientious objector and another is still a sergeant after 12 years, a sluggish rate of promotion that suggests less than stellar performance.

John Tranberg, attorney for Pittman, said he will make an issue of "missing evidence." Included are pictures taken of Hatab that show him in good shape after he was allegedly roughed up by Pittman.

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