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Order to close Army hearing in death of Iraqi general challenged

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Order to close Army hearing in death of Iraqi general challenged

  • A military appeals court halted a secret hearing against three Army soldiers accused of killing an Iraqi general and ordered the government to explain why the proceeding should be closed to the public.

Dec. 7, 2004 — The U.S. Army Court of Criminal Appeals has given the government until Dec. 13 to explain why a secret preliminary hearing in the case of three soldiers charged with killing an Iraqi officer during interrogation should not be open to the public.

The Denver Post challenged an order by Capt. Robert Ayers to close a so-called “Article 32” hearing involving the alleged murder of Maj. Gen. Abid Hamed Mowhoush, who suffocated to death in November 2003 while in U.S. custody in Qaim, Iraq.

Ayers closed the hearing at Fort Carson, Colo., because he anticipated that discussion of classified information “at some points” during the proceeding could jeopardize national security, according to a petition filed by the Post . Ayers, who relied on evidence presented to him in secret session, also reasoned that closing the proceeding to the public would protect the personal safety of the accused soldiers and their lawyers, the petition stated.

But attorney Steven D. Zansberg, who represents The Post , said the law requires Ayers to make a “witness by witness” determination whether to exclude the public, rather than issue a blanket closure order.

“The era in which Article 32 hearings could be routinely closed with little or no justification is over,” he wrote in his Dec. 3 petition to the Arlington, Va.-based court.

Hearings held under Article 32 of the Uniform Code of Military Justice are akin to preliminary or probable cause hearings in civilian court.

The court stayed the Colorado hearing on the same day the petition was filed. It further ordered the government to “show cause” within 10 days why Ayers should not have to rescind his closure order and be prevented from arbitrarily closing the entire hearing to the press and public. Zansberg will have seven days to reply after the government files its response, after which the appeals court is expected to issue a decision.

Zansberg said in a telephone interview that the case is of “paramount public importance,” noting that members of Congress have called for a full investigation into Mowhoush’s death since The Post broke the story. He said to his knowledge, this case is the first in the Iraq war in which homicide charges have been filed against uniformed military personnel for killing a prisoner in U.S. custody.

Chief Warrant Officers Lewis E. Welshofer Jr. and Jefferson L. Williams, Sgt. 1st Class William J. Sommer, and Spc. Jerry L. Loper stand accused of murder and dereliction of duty, but Welshofer’s hearing has been delayed, according to the Post . After hearing the government’s evidence, Ayers will recommend to the commander of Fort Carson whether there is sufficient evidence to hold the defendants over for court-martial or trial, Zansberg said.

(The Denver Post Corp. v. U.S., Media Counsel: Steven Zansberg, Faegre & Benson LLP, Denver) KK

© 2004 The Reporters Committee for Freedom of the Press

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