thedrifter
06-29-06, 03:24 AM
Proving war killing a crime tests courts
By THOMAS WATKINS, Associated Press Writer
Wed Jun 28, 2:05 PM ET
The charges are startling — an Iraqi man was dragged from his home, tied up and shot to death by five Marines. And the potential punishment is the harshest possible: death.
But alleging a wartime killing is far different from proving it. And even when a conviction is won, the penalties vary greatly.
Research by The Associated Press shows at least 14 members of the U.S. military have been convicted in connection with the deaths of Iraqis. Two received sentences of up to life in prison, while most others were given little or no jail time.
"Countries have a built-in reluctance to throw the book at their own forces," said Eugene R. Fidell, a civilian defense attorney and president of the National Institute of Military Justice.
Just bringing charges can be difficult, because it can be exceedingly hard to gather clues from the scene, evidence can easily be doctored or destroyed, and witnesses may have dramatically different accounts of what happened — particularly if the death occurred during the chaos of battle.
Soldiers also often are unwilling to turn on their comrades-in-arms and assist military investigators, who themselves recognize "that things can be wild on the battlefield and the hazards and unfairness of Monday-morning quarterbacking," Fidell said.
Last week brought a flurry of activity on the legal front.
Seven Marines and a Navy corpsman were charged with premeditated murder for the killing of the Iraqi man in Hamdania on April 26.
Also four members of the Army's 101st Airborne Division were charged with murder in the May 9 shooting deaths of three civilians who had been detained by U.S. troops. Meanwhile, the investigation continues into last year's killing of 24 civilians in Haditha, with the possibility that more Marines could be charged with murder.
Gary D. Solis, a former Marine Corps prosecutor and judge who teaches the laws of war at Georgetown University, said in the Hamdania case it is likely prosecutors will try to cut a deal with those who had lesser roles in the killing. In return, prosecutors will want those soldiers to testify.
Attorney Paul Hackett, a Marine reservist who recently completed a seven-month tour in Iraq, is representing one of the Marines in the Haditha probe. He said testimony from a soldier is a potent tool for the prosecution.
"There's nothing more powerful than what someone says," he said. "Everything else descends in order of gravitas and importance."
Absent such testimony, prosecutors often face an uphill battle.
A civilian crime scene in the United States is cordoned off to protect the evidence, and investigators can painstakingly examine the scene for clues. In a war zone, where bullets may be flying, that is not always possible.
John Sifton of Human Rights Watch said there is another reason convictions and stiff sentences are unusual: reluctance on the part of the Pentagon to vigorously pursue cases that could undercut the war effort.
Army Lt. Col. Mark Ballesteros, a Pentagon spokesman, disputed that, saying the military takes allegations of wrongdoing seriously. He said there have been more than 600 criminal investigations of detainee abuse and more than 250 service members have been punished.
Solis said it is in the Pentagon's interest to prosecute war crimes. Failure to do so can undercut morale among law-abiding soldiers and create a public relations problem for the military. But, he added, often superiors do not know a crime has been committed.
"When someone commits a crime they don't go to their commander and say, 'Hey, guess who I raped and murdered today,'" Solis said.
Once investigators determine there is evidence of a crime, the case is in the hands of the commanding officer of the accused soldiers. Commanders decide not only which cases should be tried, but who should sit on the jury.
"One of the weaknesses of our system is that we don't have a single, centralized prosecution authority. It's done command-by-command," Fidell said.
Because a commanding officer decides the jury, critics say there is the potential that jurors will be picked who are less likely to convict a fellow soldier or to mete out harsh punishment, since that could reflect poorly on the commanding officer.
But beyond that, there is the simple fact that a jury of service members understands that war produces brutal behavior that is not necessarily criminal.
"There is a recognition on the part of military personnel that things can move at warp speed in the insane environment of Iraq and Afghanistan," Fidell said. "Insane conditions are prevailing there. People are operating under dawn-to-dusk stress of an exceptional depth. And I think people do find it difficult to return guilty verdicts."
Ellie
By THOMAS WATKINS, Associated Press Writer
Wed Jun 28, 2:05 PM ET
The charges are startling — an Iraqi man was dragged from his home, tied up and shot to death by five Marines. And the potential punishment is the harshest possible: death.
But alleging a wartime killing is far different from proving it. And even when a conviction is won, the penalties vary greatly.
Research by The Associated Press shows at least 14 members of the U.S. military have been convicted in connection with the deaths of Iraqis. Two received sentences of up to life in prison, while most others were given little or no jail time.
"Countries have a built-in reluctance to throw the book at their own forces," said Eugene R. Fidell, a civilian defense attorney and president of the National Institute of Military Justice.
Just bringing charges can be difficult, because it can be exceedingly hard to gather clues from the scene, evidence can easily be doctored or destroyed, and witnesses may have dramatically different accounts of what happened — particularly if the death occurred during the chaos of battle.
Soldiers also often are unwilling to turn on their comrades-in-arms and assist military investigators, who themselves recognize "that things can be wild on the battlefield and the hazards and unfairness of Monday-morning quarterbacking," Fidell said.
Last week brought a flurry of activity on the legal front.
Seven Marines and a Navy corpsman were charged with premeditated murder for the killing of the Iraqi man in Hamdania on April 26.
Also four members of the Army's 101st Airborne Division were charged with murder in the May 9 shooting deaths of three civilians who had been detained by U.S. troops. Meanwhile, the investigation continues into last year's killing of 24 civilians in Haditha, with the possibility that more Marines could be charged with murder.
Gary D. Solis, a former Marine Corps prosecutor and judge who teaches the laws of war at Georgetown University, said in the Hamdania case it is likely prosecutors will try to cut a deal with those who had lesser roles in the killing. In return, prosecutors will want those soldiers to testify.
Attorney Paul Hackett, a Marine reservist who recently completed a seven-month tour in Iraq, is representing one of the Marines in the Haditha probe. He said testimony from a soldier is a potent tool for the prosecution.
"There's nothing more powerful than what someone says," he said. "Everything else descends in order of gravitas and importance."
Absent such testimony, prosecutors often face an uphill battle.
A civilian crime scene in the United States is cordoned off to protect the evidence, and investigators can painstakingly examine the scene for clues. In a war zone, where bullets may be flying, that is not always possible.
John Sifton of Human Rights Watch said there is another reason convictions and stiff sentences are unusual: reluctance on the part of the Pentagon to vigorously pursue cases that could undercut the war effort.
Army Lt. Col. Mark Ballesteros, a Pentagon spokesman, disputed that, saying the military takes allegations of wrongdoing seriously. He said there have been more than 600 criminal investigations of detainee abuse and more than 250 service members have been punished.
Solis said it is in the Pentagon's interest to prosecute war crimes. Failure to do so can undercut morale among law-abiding soldiers and create a public relations problem for the military. But, he added, often superiors do not know a crime has been committed.
"When someone commits a crime they don't go to their commander and say, 'Hey, guess who I raped and murdered today,'" Solis said.
Once investigators determine there is evidence of a crime, the case is in the hands of the commanding officer of the accused soldiers. Commanders decide not only which cases should be tried, but who should sit on the jury.
"One of the weaknesses of our system is that we don't have a single, centralized prosecution authority. It's done command-by-command," Fidell said.
Because a commanding officer decides the jury, critics say there is the potential that jurors will be picked who are less likely to convict a fellow soldier or to mete out harsh punishment, since that could reflect poorly on the commanding officer.
But beyond that, there is the simple fact that a jury of service members understands that war produces brutal behavior that is not necessarily criminal.
"There is a recognition on the part of military personnel that things can move at warp speed in the insane environment of Iraq and Afghanistan," Fidell said. "Insane conditions are prevailing there. People are operating under dawn-to-dusk stress of an exceptional depth. And I think people do find it difficult to return guilty verdicts."
Ellie