Case of Accused Soldiers May Be Worst of 2 Wars

By CHARLIE SAVAGE

WASHINGTON – Over the last nine years, as the Army has cycled hundreds
of thousands of soldiers through combat duty in Afghanistan and Iraq,
it has also court-martialed 34 on murder or manslaughter charges in
the killings of civilians in those conflict zones. Twenty-two were
convicted, and 12 acquitted.

Some cases gained a measure of notoriety, including a rape and
multiple killing in Iraq in 2006 that resulted in lengthy sentences
for several soldiers. The Marine Corps, too, has dealt with high-
profile cases, like the killing by Marines in 2005 of 24 Iraqis in
Haditha – though prosecution efforts in that case largely collapsed.

But a case being heard before a military court at Joint Base Lewis-
McChord near Seattle could surpass all that have come before in the
two wars: an investigation into accusations that a drug-addled Army
unit formed a secret self-described “kill team” that repeatedly killed
Afghan civilians for sport, posing for pictures with victims and
taking body parts as trophies.

The particularly chilling and gruesome details of the accusations make
the case different in many ways from the broader universe of publicly
known civilian killings in Iraq and Afghanistan, said military law
specialists and human rights advocates who track such killings.

“This is a magnitude escalation above anything that has ever happened
before” in Afghanistan or Iraq, said Thomas J. Romig, a retired major
general who oversaw the Army’s court-martial system as judge advocate
general from 2001 to 2005.

The majority of civilian-killing cases that have arisen until now have
been connected to combat in some way: soldiers accused of using
excessive force or firing indiscriminately when responding to an
attack, or who killed prisoners shortly after a bombing or a
firefight, when emotions were still raging.

The Haditha killings, for example, followed a bombing that killed one
Marine and severely injured two others. Several defendants later
claimed that they were shot at after the blast. (Though most of the
case collapsed, one defendant still faces a trial on manslaughter
charges.)

Similarly, in 2008, the military decided not to bring charges against
two Marines who commanded a unit accused of indiscriminately firing on
vehicles and pedestrians along a 10-mile stretch of road in
Afghanistan. The shootings began after a suicide bomber attacked the
unit’s convoy.

An Army investigation later concluded that 19 people were killed and
50 were injured. But the Marines said they had taken hostile gunfire
after the explosion and had fired to defend themselves from perceived
threats. The case was closed without any prosecution.

It can be difficult to win a conviction, specialists in military law
said, when defendants can make a plausible claim that they believed,
in the confusion of the “fog of war,” that their lives were in danger
and they needed to defend themselves.

“You often see cases of kids who just make dumb decisions,” said Gary
Solis, who teaches the laws of war at Georgetown University. “But
killings in the heat of the moment, they don’t usually try those guys.
The guys you try are the ones who have an opportunity to consider what
they are doing.”

Last year, for example, five Army soldiers were convicted or pleaded
guilty to charges related to the killings of four blindfolded and
handcuffed detainees. The victims were shot in the back of the head
and dumped into a Baghdad canal in 2007.

In that case, the soldiers had captured the prisoners shortly after
somebody had shot at the soldiers. They were frustrated because they
believed their prisoners were insurgents who would be released because
the evidence against them was deemed to be too weak.

The accusations in the most recent case are even further removed from
the high emotions of combat. In a videotaped interrogation that was
leaked to the news media, one defendant said that they would kill
civilians without provocation after making it seem as if they were
under attack.

Military investigators and prosecutors have faced challenges in
assembling evidence in conflict zones, said Eugene R. Fidell, who
teaches military law at Yale Law School. In many cases, he said,
months have passed by the time an accusation surfaces, and so units
have rotated back from the tour of duty, records are poor, and it is
difficult to find witnesses.

Moreover, in the Muslim world investigators are deeply reluctant, for
cultural reasons, to exhume bodies and perform autopsies. Still, he
noted, in some cases troops have taken digital photographs recording
their deeds. (Both factors are present in the most recent case.)

Several military lawyers and human rights groups said that of all the
known cases that have previously arisen in Iraq and Afghanistan, the
current matter most closely resembles a gang-rape and murder in
Mahmudiya, Iraq, in 2006.

In that case, soldiers raped a 14-year-old girl and killed her and her
family, then set their house on fire. Like the accusations in the
current Afghan case, that incident was unconnected to combat: the
family lived near a checkpoint staffed by the unit, which conspired
ahead of time to undertake the assault and blame insurgents, the trial
showed.

By the time that rape and killings came to light, one of the soldiers
had already been discharged from the Army. He was tried in civilian
court and received life without parole, while several others were
convicted in a court-martial and received sentences of 90 and 100
years.

Still, the ability to compare and contrast the present case with
others has limits, Mr. Romig and several human rights groups said. It
cannot be known whether other questionable civilian killings failed to
come to light. Moreover, because the military justice system is
decentralized, there is little comprehensive information available
about its investigations.

The Marine Corps, for example, was unable to provide numbers about
prosecutions and acquittals of its service members for killing
civilians in the two wars. The numbers supplied by the Army for its
murder and manslaughter cases do not cover other incidents that were
labeled with a lesser charge, like negligent homicide or aggravated
assault – nor those punished administratively with reprimands.

And many civilian deaths have arisen in contexts – like shootings of
cars that failed to stop as they approached checkpoints – that rarely
result in criminal charges or any public records.

“The large majority of civilian harm in both Iraq and Afghanistan
takes place during legitimate military operations,” said Sarah
Holewinksi, executive director of the Campaign for Innocent Victims in
Conflict. “But because of very poor record keeping on the part of all
the warring parties, we really don’t know who has been harmed, how
many have been harmed and how they have been harmed.”

Source: http://www.nytimes.com/2010/10/04/us/04soldiers.html
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