UNITED STATES, Appellee 

v. 

Charles A. Graner Jr., Specialist 

U.S. Army, Appellant 

No. 09-0432 

Crim. App. No. 20050054 

United States Court of Appeals for the Armed Forces

Argued May 3, 2010 

Decided June 25, 2010 

STUCKY, J., delivered the opinion of the Court, in which ERDMANN 

and RYAN, JJ., joined. EFFRON, C.J., filed a separate opinion 

concurring in part and in the result. BAKER, J., filed a 

separate opinion concurring in part and dissenting in part. 

Counsel

For Appellant: Charles W. Gittins, Esq. (argued); Captain 

Michael E. Korte (on brief). 

For Appellee: Captain Chad M. Fisher (argued); Colonel Norman

F. J. Allen III, Lieutenant Colonel Martha L. Foss, and Major 

Sara M. Root (on brief); Captain Philip M. Staten. 

Military Judge: James L. Pohl 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Graner, No. 09-0432/AR 

2

 Judge STUCKY delivered the opinion of the Court. 

 We granted review in this Abu Ghraib case to determine 

whether the military judge abused his discretion in (1) refusing 

to compel the Government to produce certain memoranda requested 

by the defense; (2) excluding the testimony of, and an e-mail 

from, Major Ponce; and (3) limiting the testimony of a defense 

expert witness. We hold that the military judge did not abuse 

his discretion in any of these decisions and affirm the judgment 

of the United States Army Court of Criminal Appeals (CCA).1

I. 

 A general court-martial composed of officer and enlisted 

members convicted Appellant, contrary to his pleas, of two 

specifications of conspiring to commit maltreatment, one 

specification of dereliction of duty for failing to protect 

detainees under his charge from abuse, four specifications of 

maltreating detainees, assault with a means likely to produce 

death or grievous bodily harm, assault consummated by battery, 

and committing an indecent act, in violation of Articles 81, 92, 

 

1

 Appellant and the Government have also submitted three 

outstanding motions related to this case. “The Court will 

normally not consider any facts outside of the record 

established at the trial and the Court of Criminal Appeals.” 

C.A.A.F. R. 30A(a). While we may remand for further factfinding 

if an issue concerning an unresolved fact affects the Court’s 

resolution of the case, C.A.A.F. R. 30A(c), none of the 

documents that either party seeks to submit into the record are 

necessary to resolve the issues of this case. As such, all 

three motions are denied. 
United States v. Graner, No. 09-0432/AR 

3

93, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 881, 892, 893, 928, 934 (2000). The panel sentenced 

Appellant to a dishonorable discharge, confinement for ten 

years, reduction to E-1, and forfeiture of all pay and 

allowances. The convening authority approved the findings and 

sentence. The CCA summarily affirmed. United States v. Graner, 

No. 20050054 (A. Ct. Crim. App. Feb. 9, 2009). 

II. 

 On November 7, 2003, Appellant exploited his position as a 

military policeman at Abu Ghraib, an American-operated detainee 

facility in Iraq, in order to abuse and demean Iraqi detainees. 

Appellant’s actions that day included: ripping the pants off a 

detainee and having Specialist Sabrina Harman write “I’m a 

rapeist [sic]” on the detainee’s leg, then punching the detainee 

in the temple so hard that the detainee was knocked unconscious; 

posing in a picture with a detainee where Appellant held the 

detainee’s head in his hands while Appellant’s other hand was 

cocked in a fist near the detainee’s head, even though 

photography was prohibited at that section of the facility; 

helping to force the unwilling detainees into a naked human 

pyramid and then posing for a picture with the pyramid of naked 

Iraqi detainees; taking a picture of a detainee being forced to 

masturbate while Private First Class (PFC) Lynndie England 

smiled, pointed at the detainee’s genitals, and gave a “thumbs-
United States v. Graner, No. 09-0432/AR 

4

up” sign; placing a detainee in a position so that the 

detainee’s face was directly in front of the genitals of another 

detainee to simulate fellatio, and then photographing them; and 

wrapping a tether around a detainee’s neck, handing the tether 

to PFC England, and then taking a picture of PFC England and the 

tethered detainee. 

 The defense theory of the case was that Appellant was 

complying with a general command climate of humiliating 

detainees in the belief that humiliation would make them more 

likely to reveal information of intelligence value, and that 

individual military policemen had wide discretion in 

implementing this agenda. Several defense witnesses testified 

that the detainees were routinely naked, that their sleep was 

regulated and disturbed, that their food was limited, and that 

their hands were sometimes handcuffed to cell doors. Defense 

witnesses also testified that they had received vague orders to 

soften up detainees, that intelligence personnel did not care 

what was done to detainees, and that intelligence personnel 

supported more aggressive use of force on detainees. 

III. 

A. 

 On June 12, 2004, the defense requested that the Government 

provide 
United States v. Graner, No. 09-0432/AR 

5

a copy of the Department of Defense report detailing 

the legal obligations of the United States government 

to refrain from using torture as an interrogation 

technique and the legal liabilities of government 

agents who do use such methods. This report was 

produced on or about 6 March 2003 by a DoD working 

group. . . . This report would be relevant to the 

defense’s case because the report constitutes some 

evidence of the duties owed to a detainee (viz. in the 

context of a dereliction of duty charge) by a 

government agent and of whether these duties change if 

the agent is ordered to engage in conduct that 

constitutes maltreatment. 

Emphasis deleted. 

 The Government denied the request, asserting that the DoD 

report was not relevant because Appellant’s actions were not in 

furtherance of an official interrogation. 

 At a session of the trial held pursuant to Article 39(a), 

UCMJ, 10 U.S.C. § 839(a) (2006), the defense renewed its request 

for the DoD report. The military judge declined to compel 

release of the report because the defense had not demonstrated 

relevance, but the military judge invited a future motion if 

relevance could be established at trial. 

 Later in the same Article 39(a) session, the defense 

revisited the memo issue. At this point, the defense counsel 

conflated the DoD report with other memoranda that were not 

previously mentioned: 

Just a minute ago, we were talking about a memo from 

the Department of Justice, from various Staff Judge 

Advocates and General Counsel to the President of the 

United States, to the CIA and other government 

agencies, to the Secretary of Defense. We understand 
United States v. Graner, No. 09-0432/AR 

6

there were memos given, perhaps, to Lieutenant General 

Sanchez and to other officials within the direct chain 

of command of Specialist Graner pertaining to the 

legal status or not of detainees during the war on 

terrorism. 

 There was then a lengthy colloquy between the military 

judge and defense counsel in which the defense proposed several 

broad theories on why the memos were needed: (1) that the memos 

established that the detainees were not protected by any of the 

laws of war, and therefore Appellant could not possibly maltreat 

them; (2) that Appellant lacked the state of mind necessary to 

maltreat because he thought he was just following orders; and 

(3) that there was unlawful command influence in general. The 

military judge again rejected the request because Appellant had 

not formulated a sufficient theory of relevance but again 

invited the defense to resubmit the discovery request once 

relevance had been established. The defense did not submit 

another request for the DoD report or any other memos during the 

remainder of the trial. 

 The Government claims that the DoD report was publicly 

released on the DoD website one day after the Article 39(a) 

hearing.2

 

2

 The Government has moved to submit an affidavit stating that 

the assistant trial counsel disclosed the DoD report, as well as 

other documents, to the defense. As noted earlier, this Court 

has denied the motion to submit this affidavit. 
United States v. Graner, No. 09-0432/AR 

7

B. 

 Appellant argues that the military judge abused his 

discretion by not compelling the Government to submit the 

various memoranda because they would have supported the defense 

theory that senior government officials had authorized the sort 

of detainee treatment that Appellant engaged in. 

We review a military judge’s ruling on a request for the 

production of evidence under the strict standard of an abuse of 

discretion. United States v. Rodriguez, 60 M.J. 239, 246 

(C.A.A.F. 2004). “A military judge abuses his discretion when 

his findings of fact are clearly erroneous, the court’s decision 

is influenced by an erroneous view of the law, or the military 

judge’s decision on the issue at hand is outside the range of 

choices reasonably arising from the applicable facts and the 

law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 

2008); see United States v. Travers, 25 M.J. 61, 62 (C.M.A. 

1987). 

“The trial counsel, the defense counsel, and the courtmartial shall have equal opportunity to obtain . . . evidence in 

accordance with such regulations as the President may 

prescribe.” Article 46, UCMJ, 10 U.S.C. § 846 (2006). The 

government’s suppression of evidence is a statutory violation if 

it violates the President’s discovery rules, promulgated under 
United States v. Graner, No. 09-0432/AR 

8

Article 46, UCMJ, which appear in Rules for Courts-Martial 

(R.C.M.) 701-703. 

Three of these rules are potentially applicable to 

Appellant’s discovery request: 

(1) Each party is entitled to the production of evidence 

which is relevant and necessary. R.C.M. 703(f). 

(2) Upon the request of the defense, the government must 

produce any documents that are in the possession of military 

authorities and are “material to the preparation of the defense 

or are intended for use by the trial counsel as evidence in the 

prosecution case-in-chief at trial.” R.C.M. 701(a)(2)(A). 

 (3) The trial counsel must disclose to the defense 

the existence of evidence known to the trial counsel which 

reasonably tends to: 

 (A) Negate the guilt of the accused of an 

offense charged; 

 (B) Reduce the degree of guilt of the accused of 

an offense charged; or 

 (C) Reduce the punishment. 

R.C.M. 701(a)(6). 

 Of course, these rules are themselves grounded on the 

fundamental concept of relevance. As Professor Wigmore put it 

over a century ago: “None but facts having rational probative 

value are admissible.” 1 John Henry Wigmore, Evidence in Trials 

at Common Law 655 (Peter Tillers rev. 1983). For us, the 
United States v. Graner, No. 09-0432/AR 

9

standard is set out in Military Rule of Evidence (M.R.E.) 401: 

“‘Relevant evidence’ means evidence having any tendency to make 

the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than 

it would be without the evidence.” 

 Applying this standard, we conclude that the military judge 

did not abuse his discretion in determining that the defense did 

not present an adequate theory of relevance to justify the 

compelled production of the DoD report, the only piece of 

evidence identified with specificity in the defense request. 

None of the theories enunciated at the Article 39(a) 

session by Appellant established the relevance of the request. 

There was no evidence that Appellant’s state of mind at Abu 

Ghraib was in any way affected by a DoD report that he had never 

seen. Appellant’s affirmative duty to protect the detainees 

under his charge from abuse was not affected by any views on the 

international legal status of Iraqi detainees set out in the 

report. Abuse of detainees in the custody or control of the 

United States may form the basis of a maltreatment conviction. 

See United States v. Smith, 68 M.J. 316, 323 (C.A.A.F. 2010). 

Finally, Appellant failed to present any “facts which, if true, 

constitute unlawful command influence.” United States v. 

Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). 
United States v. Graner, No. 09-0432/AR 

10

 The military judge also did not abuse his discretion in 

declining to order the production of the various other documents 

that Appellant maintains on appeal that he requested. R.C.M. 

703(f)(3) requires that any request for the production of 

evidence shall list each piece of evidence and a description of 

each item “sufficient to show its relevance and necessity, a 

statement where it can be obtained, and, if known, the name, 

address, and telephone number of the custodian of the evidence.” 

The defense failed to meet this burden with respect to any 

document encompassed by this issue other than the DoD report. 

IV. 

A. 

 Major William Ponce was a mid-level military intelligence 

officer who had been assigned to both Afghanistan and Iraq. 

Major Ponce wrote an e-mail on August 14, 2003, to several 

people in which he stated that he favored the more forceful 

treatment of detainees during interrogation. Abu Ghraib did not 

yet exist as an interrogation center when the e-mail was sent, 

but several of its recipients may have occupied positions at Abu 

Ghraib. There is no evidence that Appellant or any of his 

coconspirators ever knew about this e-mail. Appellant moved for 

its admission prior to trial on the basis that it may have 

affected the orders that issued from military intelligence 

teams. The Government objected on the basis that it was 
United States v. Graner, No. 09-0432/AR 

11

irrelevant, was hearsay, and lacked foundation. The military 

judge sustained the Government’s objection because the e-mail 

was not relevant. Later, there was a renewed discussion about 

Major Ponce’s e-mail. The military judge again denied the 

admission of the e-mail because it was too far removed in time 

and space from Appellant’s activities at Abu Ghraib. 

 Appellant also wanted to call Major Ponce to testify before 

the court members to establish when military intelligence 

officers generally became more forceful in their treatment of 

detainees. The military judge initially agreed to allow Major 

Ponce to testify about the “conditions for actionable 

intelligence and its impression on the [military intelligence] 

community in the September time-frame and the October timeframe.” But the military judge changed his mind after the 

defense moved to introduce the testimony of Roderick Brokaw, a 

retired military interrogator with the Army who had worked as an 

interrogator at Abu Ghraib, because the military judge reasoned 

that Mr. Brokaw had a strong connection with Abu Ghraib, while 

Major Ponce’s connection was tenuous at best. Mr. Brokaw was 

permitted to testify “as to pressure from higher echelons to 

produce actionable intelligence.” 

 Later, the defense again argued that Major Ponce should be 

able to testify in order to show “the frustration that higher 

command was feeling” about being unable to acquire intelligence 
United States v. Graner, No. 09-0432/AR 

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within the existing interrogation parameters, but the military 

judge did not allow his testimony because it was unclear who 

received Major Ponce’s e-mail or what impact it had on the 

interrogators at Abu Ghraib. 

B. 

 Appellant argues that the military judge abused his 

discretion when he declined to admit Major Ponce’s e-mail or 

allow Major Ponce to testify, purportedly because Major Ponce 

would have helped establish the defense theory that his 

superiors authorized the rough treatment of detainees. 

 We review a military judge’s decision on whether to admit 

evidence for an abuse of discretion. United States v. Weston, 

67 M.J. 390, 392 (C.A.A.F. 2009). 

 The military judge did not abuse his discretion when he 

declined to admit Major Ponce’s e-mail and testimony. There was 

no evidence that Appellant, or anyone giving orders to 

Appellant, knew about Major Ponce’s e-mail, or had any contact 

with Major Ponce. Appellant was still able to present direct 

evidence that he and his coconspirators believed that they were 

supposed to soften up the detainees. Given the total lack of 

evidence connecting Major Ponce’s opinions with Appellant’s 

conduct, neither Major Ponce’s e-mail nor his expected testimony 

had a tendency to show that any fact of consequence to the 

court-martial was more or less probable. 
United States v. Graner, No. 09-0432/AR 

13

V. 

A. 

 Thomas Archambault, a non-military training instructor and 

use-of-force specialist, testified for the defense as an expert 

on the use of force. At a pretrial Article 39(a) hearing, Mr. 

Archambault testified that use of the leash on detainees and the 

naked pyramids were reasonable uses of force. With respect to 

the tether, he stated that the use of the tether around the neck 

of the detainee was a reasonable means of cell extraction under 

the facts of this case. While Mr. Archambault said that the 

tether should not have been used around the neck as it was, he 

reasoned that the tether may have accidentally slipped from the 

upper torso to the neck. Mr. Archambault testified that the 

fact that pictures were taken of the leash incident did not 

render the tether incident unreasonable because the photographer 

could quickly have come to the other guard’s aid in the event 

that the detainee became violent. 

 With respect to the naked pyramids, Mr. Archambault 

testified that this sort of “stacking” could be an appropriate 

use of force, even if it was neither authorized nor approved by 

any professional organization or training manual, as a means of 

controlling and containing unrestrained detainees. Here, Mr. 

Archambault reasoned, the detainees were not in restraints, they 

were shouting to each other in Arabic, and the detainees were 
United States v. Graner, No. 09-0432/AR 

14

all in a small space with limited guards. Mr. Archambault also 

testified that the form of stacking here prevented “positional 

asphyxia,” a dangerous medical condition where a person has 

trouble breathing as a result of pressure on the diaphragm. Mr. 

Archambault conceded that he was aware of only one incident of 

stacking humans and that occurred at Attica Prison, a civilian 

facility in the United States, by guards taking back the 

facility from rioting, unrestrained inmates. 

 The military judge ultimately limited Mr. Archambault’s 

testimony to the point that the detainees would not have 

suffered from positional asphyxiation because of the manner in 

which they were stacked. The military judge refused to allow 

Mr. Archambault to testify concerning the appropriateness of the 

leash (or tether) around the neck and stacking techniques. The 

military judge concluded that such testimony was irrelevant and 

not helpful to the court members. Mr. Archambault knew of no 

authority for either technique, and the stacking at Attica had 

occurred under very different circumstances. 

B. 

Appellant argues that Mr. Archambault’s testimony was 

improperly restricted because Appellant was denied his most 

effective rebuttal to the tether and pyramid incidents. 

An expert witness may provide opinion testimony if “(1) the 

testimony is based upon sufficient facts or data, (2) the 
United States v. Graner, No. 09-0432/AR 

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testimony is the product of reliable principles and methods, and 

(3) the witness has applied the principles and methods reliably 

to the facts of the case.” M.R.E. 702. “The military judge has 

broad discretion as the ‘gatekeeper’ to determine whether the 

party offering expert testimony has established an adequate 

foundation with respect to reliability and relevance.” United 

States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001), quoted in

United States v. Allison, 63 M.J. 365, 369 (C.A.A.F. 2006). 

We find that the military judge did not abuse his 

discretion when he limited Mr. Archambault’s testimony to 

positional asphyxia. The military judge properly determined 

that Mr. Archambault had an insufficient basis to conclude that 

the naked human pyramid and the tether around the neck were 

reasonable uses of force. 

VI. 

 The judgment of the United States Army Court of Criminal 

Appeals is affirmed. 
United States v. Graner, No. 09-0432/AR 

EFFRON, Chief Judge (concurring in part and in the result): 

 I concur in the result with respect to Issue I. I concur 

with the opinion with respect to Issue II. 

Issue I, as granted, states: 

WHETHER THE MILITARY JUDGE ERRED TO THE 

SUBSTANTIAL PREJUDICE OF THE ACCUSED BY FAILING 

TO ORDER DISCLOSURE OF MEMOS THAT SET OUT 

APPROVED “ENHANCED INTERROGATION TACTICS” FOR 

HANDLING DETAINEES IN UNITED STATES CUSTODY. 

 The threshold question with respect to prejudice is whether 

the Government provided the defense with timely disclosure of 

the requested material. As reflected in the following 

chronology, the Government provided timely pretrial disclosure 

of the 2003 Department of Defense Working Group Report on 

Detainee Interrogations in the Global War on Terrorism 

[hereinafter 2003 DoD Report], the primary document at issue in 

the present appeal. 

On June 12, 2004, Appellant submitted a pretrial discovery 

request for the Government to provide a copy of the 2003 DoD 

Report “detailing the legal obligations of the United States 

government to refrain from using torture as an interrogation 

technique and the legal liabilities of government agents who do 

use such methods.” At that point, the Government denied the 

request. On June 21, 2004, defense counsel asked the military 

judge to order production of the 2003 DoD Report. The military 

judge denied the motion on the ground that the defense “[a]t 
United States v. Graner, No. 09-0432/AR 

2

this time” had not made a sufficient connection to the issues in 

the trial. The military judge emphasized repeatedly that his 

ruling was based on what the defense had “proffered so far,” and 

he advised the defense: “You are free to renew your request 

upon a showing of greater relevance than what you’ve shown so 

far.” 

According to an unrebutted affidavit submitted by the 

Government during the present appeal, the assistant trial 

counsel provided the defense counsel with the requested 2003 DoD 

Report on July 22, 2004 -- a point in time more than five months 

before the beginning of trial on the merits. The Government’s 

filing directly refutes Appellant’s claim that the document was 

not provided to the defense “prior to, during, or after trial.” 

See Brief of Appellant at 5, United States v. Graner, __ M.J. __ 

(C.A.A.F. 2010) (No. 09-0432). 

 Under these circumstances, there was no prejudice, 

irrespective of the sufficiency of the defense motion or the 

validity of the military judge’s ruling on the motion. 

Accordingly, I respectfully disagree with the approach to Issue 

I in the majority opinion, which rejects the Government’s filing 

and proceeds on the assumption that the Government withheld the 

document. Graner, __ M.J. at __ (2 n.1, 6 n.2). 

 Similar considerations apply with respect to the other 

documents pertinent to Issue I. Although I disagree with the 
United States v. Graner, No. 09-0432/AR 

3

decision to reject the defense motion to file these documents on 

appeal, id., the result is the same because the documents at 

issue do not establish material prejudice to the substantial 

rights of Appellant. The 2003 DoD Report, which was provided to 

the defense at trial, referred to, and relied upon, the 2003 

Department of Justice Memorandum. As such, the Department of 

Justice document was identified with sufficient particularity to 

alert the defense of its existence at the time of trial, but the 

defense did not submit a request for production of that document 

at trial. Moreover, the 2003 Department of Justice Memorandum, 

and the other reports identified on appeal by the defense, did 

not contain information that differed in material respects from 

the information in the 2003 DoD Report that was provided to the 

defense during trial. The defense did not introduce information 

from the 2003 DoD Report at trial. Appellant has not 

established that the information in the other documents would 

have been more useful to the defense at trial than the 

information provided to the defense in the 2003 DoD Report. 

Under these circumstances, any error by the military judge with 

respect to discovery of these documents did not prejudice the 

rights of Appellant. See Article 59(a), UCMJ, 10 U.S.C. § 

859(a) (2006). 
United States v. Graner, No. 09-0432/AR 

BAKER, Judge (concurring in part and dissenting in part): 

I agree with the majority’s analysis and conclusion with 

regard to Appellant’s motion to compel discovery of the 

Department of Defense (DoD) report. This report was 

specifically requested, was made part of the record, and was not 

relevant to Appellant’s defense, for the reasons stated in the 

majority opinion. I also agree with the Court’s resolution of 

the issues pertaining to Major Ponce and Mr. Archambault. 

However, I do not agree with the majority’s treatment of the 

issue of discovery of the various other memoranda, and 

therefore, dissent from that portion of the opinion and note 1 

for the reasons that follow. 

 Appellant raised and this Court granted the issue 

challenging the military judge’s refusal or failure to order 

discovery of a variety of official government memoranda said to 

pertain to the handling of detainees.1

 He has moved to attach 

these memoranda to the appellate record.2

 Unfortunately, the 

 

1

 Issue I: 

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL 

PREJUDICE OF THE ACCUSED BY FAILING TO ORDER 

DISCLOSURE OF MEMOS THAT SET OUT APPROVED “ENHANCED 

INTERROGATION TACTICS” FOR HANDLING DETAINEES IN 

UNITED STATES CUSTODY. 

2

 Among other things, the motion to attach included the 

following: 
United States v. Graner, No. 09-0432/AR 

2

majority, in a footnote, denies this motion in a perfunctory 

manner by stating that the documents are not “necessary” and 

without explaining how it can reach this conclusion without 

reviewing the documents. I would have granted the motion to 

attach. Alternatively, if a majority of this Court concluded 

that it was beyond our authority to attach such documents to the 

record, a remand to the CCA or an order for a DuBay3 hearing 

would have been in order -- or any alternative mechanism, 

including judicial notice, which could allow for consideration 

of the documents.4

 In this way, we might have addressed head-on 

Appellant’s allegations that he was operating in a command 

climate, if he was not following specific instructions, that 

condoned and tolerated detainee abuse. Given the Court’s 

 

(a) Memorandum from John C. Yoo, Deputy Assistant 

Attorney General, Office of Legal Counsel, Dep’t of 

Justice, on Military Interrogation of Alien Unlawful 

Combatants Held Outside the United States to William 

J. Haynes II, General Counsel, Dep’t of Defense 

(Mar. 14, 2003). 

(b) Major General Geoffrey Miller, Annex 20: Assessment 

of DoD Counterterrorism Interrogation and Detention 

Operations in Iraq (U), Taguba Report with Annexes 

(AR 15-6 Investigation of the 800th Military Police 

Brigade), available at

http://www.dod.gov/pubs/foi/detainees/taguba). 

(c) Memorandum from Donald Rumsfeld, Sec’y, Dep’t of 

Defense, on Counter-Resistance Techniques in the War 

on Terrorism to the Commander, U.S. Southern Command 

(Apr. 16, 2003). 

3

 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (C.M.A. 

1967). 

4

 C.A.A.F. R. 30A(b). 
United States v. Graner, No. 09-0432/AR 

3

refusal to directly address this claim, Appellant is left to 

allege that he was singled out for prosecution and did not 

receive a fair trial, writ large. Further, addressing the claim 

directly would afford Appellant, and the public, the knowledge 

that his claim, meritorious or not, was addressed in detail by a 

federal civilian court. 

Instead, Appellant’s specific and broader claims have been 

dismissed with a perfunctory wave of the judicial pen. True, at 

the time of trial, Appellant did not describe the memos in 

question with specificity, or directly link those memos to his 

conduct. However, the majority does not explain why, how, or 

if, Appellant’s counsel could have identified these memos with 

sufficient specificity in order to now support a relevance claim 

on appeal. Neither does the majority indicate whether the memos 

were classified at the time of trial. More importantly, absent 

review of the memos, Appellant and the larger audience are left 

to wonder whether the memos are in some manner relevant to 

Appellant’s broader (and more amorphous) argument regarding 

command climate. 

Of course, these documents can now be described with 

particularity and are publicly available. We know what they 

say, and can address Appellant’s relevance arguments in detail. 

Instead, Appellant and the larger audience, including the 

public, the military community, and the victims of Appellant’s 
United States v. Graner, No. 09-0432/AR 

4

abuse are left to review the memos on their own and reach their 

own determinations as to whether or not they were relevant, and 

in what manner, without benefit of a full judicial vetting and 

application of legal principles. The interests of justice and 

the military justice system would be better served were the 

documents attached to the record and subject to judicial review.