When the photos of detainee abuse at the Abu Ghraib prison in Iraq surfaced in 2004, U.S. officials portrayed Army Pvt. Charles A. Graner Jr. as the ringleader of a few low-ranking "bad apples" who illegally put naked Iraqi detainees in painful positions, shackled them to cell doors with women's underwear on their heads and menaced them with military dogs.
Now, the recent release of Justice Department memos authorizing the use of harsh interrogation techniques has given Graner and other soldiers new reason to argue that they were made scapegoats for policies approved at high levels. They also contend that the government's refusal to acknowledge those polices when Graner and others were tried undermined their legal defenses.
Graner remains locked up at Fort Leavenworth, Kan., about halfway through a 10-year prison sentence for detainee abuse, assault and dereliction of duty. His lawyer said this week that he is drafting appeals arguments centered largely on the revelations in the memos and a newly released congressional investigation into the interrogation practices.
President George W. Bush "was so disappointed in what happened, yet the whole time he knew what was going on," said Graner, answering questions through his wife, Megan, who also worked at Abu Ghraib. He is the only one of about a dozen soldiers tried for abuses at the prison who remains incarcerated.
Graner and other defendants -- including Lynndie R. England, who was photographed holding a naked detainee by a leash -- were blocked by military judges from calling senior U.S. officials to the stand at their trials in 2004 and 2005. The government would not acknowledge any policy or procedure that could have led to what the world saw in the photographs.
Some of what the guards at Abu Ghraib did, such as throwing hooded detainees into walls, echoes tactics authorized in the Justice Department memos, such as "walling," in which interrogators were allowed to push detainees in CIA custody into a flexible wall designed to make a loud noise.
But the Abu Ghraib photographs also depicted some actions, such as punching or stomping, that bear no relation to the techniques described in the memos, as well as others that were improvised by guards, such as forcing detainees to masturbate or to form human pyramids while naked.
Charles Gittins, a Virginia lawyer who represents Graner, said he has been fuming since reading the memos. He said he has long believed that there was no way Graner and the other Army Reservists invented techniques such as stress positions, leashing and the use of dogs, and he says the documents confirmed his suspicions.
"Once the pictures came out, the senior officials involved in the decision-making, they knew. They knew they had to have a cover story," Gittins said. " 'It was the bad apples led by Charles Graner.' "
Gittins said he hopes to convince the Court of Appeals for the Armed Forces that top officials improperly influenced the court and kept evidence from the defense.
According to the memos and congressional documents, U.S. officials reverse-engineered techniques from U.S. survival training courses designed to teach troops how to endure capture and interrogation. Justice and Defense department officials approved the use of dogs, nudity, stress positions, sleep deprivation and other techniques.
Those tactics, according to the documents, were put into use at the facility at Guantanamo Bay, Cuba, and in the CIA's secret prisons, and eventually were adopted in Afghanistan and Iraq after then-Defense Secretary Donald H. Rumsfeld's approval was forwarded from officials at Guantanamo to Capt. Carolyn Wood, a military intelligence officer. She told investigators that she then sought approvals in Afghanistan for the tactics and brought them with her to Iraq and Abu Ghraib. Senior officers in Iraq also approved the methods there.
Though considered illegal under the Uniform Code of Military Justice, the tactics were put into official use in late 2003. They have since been banned in a new Army Field Manual on interrogations.
Janis L. Karpinski, a former Army Reserve general in charge of prisons in Iraq who was demoted and left the service as a result of the Abu Ghraib scandal, said she was stunned silent by the administration memos.
"I could have cried," Karpinski said. "I always had a sense of betrayal because it's just disgusting. I'm sure those photos scared the hell out of them," she added, referring to Bush administration officials. "Here, in living color, you have a photographic rendition of your memos. Is that what they wanted it to look like? Guess what, that is what it looks like."
It is unclear whether low-level soldiers who were convicted of crimes can retrospectively use the Justice Department memos to their advantage. Gary Myers, a New Hampshire lawyer who represented Ivan L. "Chip" Frederick on abuse charges, said that unless the soldiers knew about the policies specifically, the memos might be irrelevant in a courtroom. Still, Myers said he is going to use the recent developments to try to get Frederick's dishonorable discharge removed from his record.
"If what was suggested as license was itself illegal, relying on illegal documents or opinions is not in my mind a defense," Myers said. "What we know now is we had at the time a rogue government that created an environment where this sort of conduct was condoned, if not encouraged. But it doesn't do anything for you when you hold it up against the maltreatment statute of the [Uniform Code of Military Justice], which is law, passed by the Congress."
Staff researcher Julie Tate contributed to this report.