SAN FRANCISCO - It is the "defense of superior orders," in the jargon of military justice.
It didn't work for the Nazis at Nuremberg, or for Army Lt. William Calley, who claimed he was just following orders when he directed the My Lai massacre during the Vietnam War.
But it could help the Army guards accused of abusing Iraqis inside the Abu Ghraib prison avoid long sentences, and just might get them off the hook entirely, if they can prove there were such orders and establish who gave them, experts in military justice say.
"The defense of superior orders is no defense if the accused knows the act is illegal," explained Michael Noone, a retired Air Force colonel and military attorney. Soldiers are required to disobey unlawful commands, he said, but the "big issue is going to be whether or not the order was obviously illegal."
Pictures taken of nude Iraqis being sexually humiliated in the same prison where Saddam Hussein's regime tortured thousands of opponents have infuriated America's enemies and allies alike. President Bush characterized the abuse as the failings of a few renegade soldiers and promised that those responsible will be quickly punished.
One of the seven guards, who tearfully pleaded guilty in Baghdad Wednesday and will testify against the others, has said that the mistreatment was not authorized by superior officers. "If they saw what was going on, there would have been hell to pay," Spc. Jeremy C. Sivits told military investigators.
But most of those accused said they were just following the orders of intelligence officers and civilian contractors who told them to humiliate the prisoners and thereby make them more willing to reveal information.
In letters home to his family, Staff Sgt. Ivan L. Frederick said that he was told "this is how military intelligence wants it done," and that when he questioned his battalion commander about the harsh inmate conditions, he was told "to do as he says."
The treatment of prisoners at Abu Ghraib "was being controlled and devised by the military intelligence community and other governmental agencies, including the CIA," said Guy Womack, an attorney for Spc. Charles Graner Jr., who was arraigned in Baghdad along with Frederick and Sgt. Javal Davis. "There's going to be plenty of evidence that they orchestrated all of this."
The defense just might work, said Tim Naccarato, the former chief of the criminal law division of the Army's Judge Advocate General School.
"If these lower-ranking military policemen can make the case they were told to do these things, instructed to do these things, they were cooperating with intelligence to soften up these prisoners so they would provide more information, they have the ability to be found not guilty based not so much on 'I was following orders' but based on the theory that a criminal act requires not only an act but criminal intent," Naccarato said.
Some members of Congress want to investigate whether the Bush administration erected a legal foundation that opened the door for the mistreatment by announcing in 2002 that al-Qaida detainees did not qualify for protection by the Geneva Conventions, which prohibits mistreatment.
